10000000610

Case 8:12-bk-22808-CB
Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 1 of 78
Desc
1 2 3 4 5 6 7 8 9 10
P ACHULSKI S TANG Z IEHL & J ONES LLP
Richard M. Pachulski (CA Bar No. 90073) James I. Stang (CA Bar No. 94435) Dean A. Ziehl (CA Bar No. 84529) Linda F. Cantor (CA Bar No. 15E3762) Debra I. Grassgreen (CA Bar No. 169978) PACHULSKI STANG ZIEHL & JONES LLP 10100 Santa Monica Blvd., Suite 1300 Los Angeles, CA 90067-4114 Telephone: 310/277-6910 Facsimile: 310/201-0760 E-mail: rpachulski@pszjlaw.com jstang@pszjlaw.com dziehl@pszjlaw.com lcantor@pszjlaw.com dgrassgreen@pszjlaw.com Proposed Attorneys for Debtor and Debtor in Possession UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re: American Suzuki Motor Corporation,1 Debtor. NOTICE OF EMERGENCY MOTION AND EMERGENCY MOTION FOR ENTRY OF AN INTERIM AND FINAL ORDER PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE APPROVING THE ENGAGEMENT CONTRACT OF (I) M. FREDDIE REISS AS CHIEF RESTRUCTURING OFFICER OF THE DEBTOR AND (II) FTI CONSULTING, INC. TO ASSIST THE CRO, NUNC PRO TUNC TO THE PETITION DATE; AND MEMORANDUM OF POINTS AND AUTHORITIES
[Declaration of M. Freddie Reiss, Proposed Chief Restructuring Officer, in Support of Emergency First Day Motions Filed Concurrently Herewith]
11 12
ATTORNEYS AT LAW LOS ANGELES, CALIFORNIA
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No.: 12Chapter 11
( )
TO THE HONORABLE UNITED STATES BANKRUPTCY JUDGE, THE OFFICE OF THE UNITED STATES TRUSTEE, THE DEBTORS PREPETITION AND POSTPETITION LENDER, THE CREDITORS APPEARING ON THE LIST FILED IN ACCORDANCE
The last four digits of the Debtors federal tax identification number are (8739). The Debtors address is: 3251 East Imperial Highway, Brea, CA 92821.
DOCS_SF:81696.6 12832/001
1
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
WITH RULE 1007(D) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE, AND PARTIES REQUESTING SPECIAL NOTICE: PLEASE TAKE NOTICE THAT American Suzuki Motor Corporation, as debtor and debtor in possession (the Debtor), hereby moves this Court for entry of an interim and final order approving, on an interim basis, the Engagement Contract regarding the Employment of (i) M. Freddie Reiss as Chief Restructuring Officer (CRO) of the Debtor and (ii) FTI Consulting, Inc. to assist the CRO nunc pro tunc to the Petition Date (the Motion) as set forth in the Memorandum of Points and Authorities annexed hereto. PLEASE TAKE FURTHER NOTICE that the Debtor requests approval of the Engagement Contract because it has determined that obtaining the services of a CRO and other personnel with turnaround and chapter 11 experience will substantially enhance their ability to (a) operate and meet their administrative obligations in this Bankruptcy Case and (b) preserve and maximize the value of their assets pending any sale. PLEASE TAKE FURTHER NOTICE that the Debtor requests that the relief sought herein be granted on an emergency basis because the retention of the CRO and FTI, are essential to the Debtors ability to seamlessly operate under chapter 11. Therefore, pursuant to Local Rule 20811(a) of the Local Bankruptcy Rules of the United States Bankruptcy Court for the Central District of California (the Local Rules),2 the Debtor requests that this Motion be heard on an emergency basis. PLEASE TAKE FURTHER NOTICE that the Motion is based on this Notice and Motion, the Notice of Emergency Motions that will be filed and served upon obtaining a hearing date for the Debtors First Day Motions, the attached Memorandum of Points and Authorities, the Declaration of M. Freddie Reiss, Proposed Chief Restructuring Officer, in Support of Emergency First Day Motions (the Reiss Declaration) filed concurrently herewith, the arguments of counsel and other admissible evidence properly brought before the Court at or before the hearing on this Motion. In addition, the Debtor requests that the Court take judicial notice of all documents filed with the Court in this case.
2
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Pursuant to Local Bankruptcy Rule 9075-1(a)(3), no separate motion for an expedited hearing is required.
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
PLEASE TAKE FURTHER NOTICE that any opposition or other response to the Motion may be filed with the Court and served on proposed counsel for the Debtor at the above address any time before the hearing, or may be presented at the hearing on the Motion. You will receive a separate notice of the date and time of the hearing on this Motion. Your failure to timely object may be deemed by the Court to constitute consent to the relief requested herein. PLEASE TAKE FURTHER NOTICE that the Debtor will serve this Notice and Motion and the attached Memorandum of Points and Authorities on: (a) the Office of the United States Trustee, (b) the creditors appearing on the list filed in accordance with Rule 1007(d) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), (c) counsel to Suzuki Motor Corporation, the Debtors prepetition and postpetition lender, and (d) the parties that file with the Court requests for notice of all matters in accordance with Bankruptcy Rule 2002. To the extent necessary, the Debtor requests that the Court waive compliance with Local Bankruptcy Rule 9075-1 and approve service (in addition to the means of service set forth in such Local Bankruptcy Rule) by overnight or electronic delivery. In the event that the Court grants the relief requested by the Motion, the Debtor shall provide notice of the entry of the order granting such relief upon each of the foregoing parties and any other parties-in-interest as the Court directs. The Debtor submits that such notice is sufficient and that no other or further notice be given. WHEREFORE the Debtor respectfully requests that this Court enter an interim order, substantially in the form attached hereto as Exhibit B: (a) approving the Engagement Contract nunc pro tunc to the Petition Date as set forth in
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
the attached Memorandum of Points and Authorities; and
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
(b)
granting such other and further relief as the Court deems appropriate under the
circumstances of this Bankruptcy Case. Dated: November 5, 2012 PACHULSKI STANG ZIEHL & JONES LLP By /s/ Debra I. Grassgreen Richard M. Pachulski James I. Stang Dean A. Ziehl Linda F. Cantor Debra I. Grassgreen Proposed Attorneys for Debtor and Debtor in Possession
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
Richard M. Pachulski (CA Bar No. 90073) James I. Stang (CA Bar No. 94435) Dean A. Ziehl (CA Bar No. 84529) Linda F. Cantor (CA Bar No. 153762) Debra I. Grassgreen (CA Bar No. 169978) PACHULSKI STANG ZIEHL & JONES LLP 10100 Santa Monica Blvd., Suite 1300 Los Angeles, CA 90067-4114 Telephone: 310/277-6910 Facsimile: 310/201-0760 E-mail: rpachulski@pszjlaw.com jstang@pszjlaw.com dziehl@pszjlaw.com lcantor@pszjlaw.com dgrassgreen@pszjlaw.com Proposed Attorneys for Debtor and Debtor in Possession UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re: American Suzuki Motor Corporation,1 Debtor. Case No.: 12Chapter 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEBTORS MOTION PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE FOR ENTRY OF AN ORDER APPROVING THE ENGAGEMENT CONTRACT OF (I) M. FREDDIE REISS AS CHIEF RESTRUCTURING OFFICER OF THE DEBTOR AND (II) FTI CONSULTING, INC. TO ASSIST THE CRO, NUNC PRO TUNC TO THE PETITION DATE ( )
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 6 of 78 TABLE OF CONTENTS
Desc
1 2 3 4 5 6 7 8 9 10
I. II. III. IV.
Jurisdiction ......................................................................................................................... 1 Background ........................................................................................................................ 1 Relief Requested ................................................................................................................ 3 Qualifications ..................................................................................................................... 4 A. Qualifications of M. Freddie Reiss ........................................................................ 4 B. Qualifications of FTI.............................................................................................. 5 Services to be Provided...................................................................................................... 6 Professional Compensation ................................................................................................ 9 General Disinterestedness of FTI..................................................................................... 11 Indemnification and Liability Limitation Provisions....................................................... 12 Basis for Relief ................................................................................................................ 13 A. Retention of FTI Is Critical to the Debtors Success ........................................... 16 Notice ............................................................................................................................... 17
V. VI. VII. VIII. IX. X.
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 7 of 78 TABLE OF AUTHORITIES
Desc
1 2 3 4 5 6 7 8 9 10
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CASES Baron & Budd, P.C. v. Unsecured Asbestos Claimants Comm., 2005 WL 435207, *14 (D.N.J. Feb. 25, 2005) ......................................................................................................................................... 18 Comm. Of Equity Sec. Holders v. Lionel Corp. (In re Lionel), 722 F.2d 1063, 1070 (2d Cir. 1983) 14 Fulton State Bank v. Schipper (In re Schipper), 933 F.3d 513, 515 (7th Cir. 1991) ........................... 14 In re Adva-Lite, Inc., Case No. 07-10264 (KJC) (Bankr. D. Del. Mar. 16, 2007) ............................. 17 In re Calpine Corp., Case No. 05-60200 (Bankr. S.D.N.Y. Jan 17, 2007) ........................................ 16 In re Continental Airlines, 203 F.3d 203, 211 (3d Cir. 2000) ............................................................ 17 In re Delaware & Hudson R.R. Co., 124 B.R. 169, 176 (Bankr. D. Del. 1991)................................. 14 In re Fairfield Residential LLC, Case No. 09-14378 (Bankr. D. Del Jan 13, 2010) .................... 15, 17 In re Fatburger Restaurants of California, Inc., et al., Case No. 09-13965 (Bankr. C.D. Cal. Feb. 16, 2011) ................................................................................................................................... 15, 16, 18 In re Global Home Products, LLC, Case No. 06-10340 (KG) (Bankr. D. Del. May 4, 2006) ........... 17 In re Hoop Holdings, LLC, Case No. 08-10544 (BLS) (Bankr. D. Del Apr. 22, 2008) ..................... 16 In re Integrated Resources, Inc., 147 B.R. 650, 656 (Bankr. S.D.N.Y. 1992) ................................... 14 In re Leiner Health Products, Inc., Case No. 08-10446 (KJC) (Bankr. D. Del. Apr. 8, 2008) .......... 16 In re Linens Holding Co., Case No. 08-10832 (CSS) (Bankr. D. Del May 28, 2008) ....................... 16 In re Montgomery Ward Holding Corp., 242 B.R. 147, 153 (Bankr. D. Del. 1999) .......................... 14 In re Motor Coach Industries International, Inc., Case No. 08-12136 (Bankr. D. Del Oct. 15, 2008) ......................................................................................................................................................... 15 In re Pappas Telecasting, Inc., Case No. 08-10916 (Bankr. D. Del June 26, 2008) .......................... 15 In re Sea Containers Ltd., Case No. 06-11156 (KJC) (Bankr. D. Del. May 8, 2007) ........................ 17 In re The Holliston Mill, Inc., Case No. 07-10687 (MFW) (Bankr. D. Del. June 6, 2007)................ 17 In re Tokheim Corp., Case No. 02-13437 (RJN) (Bankr. D. Del. Feb. 25, 2003) .............................. 16 In re TOUSA, Inc., Case No. 08-10928 (Bankr. S.D. Fla. Mar. 26, 2008); In re American Home Mortgage Holdings, Inc., Case No. 07-11047 (Bankr. D. Del. Sept. 5, 2007) ............................... 16 In re Westcliff Medical Laboratories, Inc., Case No. 10-16743 (Bankr. C.D. Cal. June 25, 2010) .. 15, 16, 18 In re World Health Alternatives, Inc., Case No. 06-10166 (PJW) (Bankr. D. Del. Mar. 15, 2006)... 17 Myers v. Martin (In re Martin), 91 F.3d 389, 395 (3d Cir. 1996) ...................................................... 14 Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985) ....................................................................... 15 Stephens Indus., Inc. v. McClung, 789 F.2d 386, 390 (6th Cir. 1986)................................................. 14 United States v. Energy Resources Co., 495 U.S.545, 549 (1990) ..................................................... 17 STATUTES 11 U.S.C. 105 ................................................................................................................................... 17 11 U.S.C. 1107 ................................................................................................................................... 1 11 U.S.C. 1108 ................................................................................................................................... 1 11 U.S.C. 363 ....................................................................................................................... 14, 16, 18 28 U.S.C. 1334 ................................................................................................................................... 1 28 U.S.C. 1408 ................................................................................................................................... 1 28 U.S.C. 1409 ................................................................................................................................... 1 28 U.S.C. 157 ..................................................................................................................................... 1 RULES Fed. R. Bankr. P. 1007 ........................................................................................................................ 19 Fed. R. Bankr. P. 2002 ........................................................................................................................ 19
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
The above-captioned debtor and debtor in possession (the Debtor) hereby files this motion (the Motion) for entry of an order approving the letter agreement (the Engagement Contract) dated November 5, 2012, by and between the Debtor and FTI Consulting, Inc. (FTI, or the Firm), nunc pro tunc to the November 5th, 2012 (the Petition Date). Pursuant to the Engagement Contract, M. Freddie Reiss (Mr. Reiss) will serve as Chief Restructuring Officer (CRO) and additional individuals (the Additional Personnel) employed by FTI will provide other critical management services to the Debtor. In support of this Motion, the Debtor submits the Declaration of M. Freddie Reiss (the Reiss Declaration), and further respectfully represents as follows: I. JURISDICTION The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334. This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). Venue is proper in this District pursuant to 28 U.S.C. 1408 and 1409. The statutory bases for the relief requested herein are sections 105 and 363 of title 11 of the United States Code (the Bankruptcy Code). II. BACKGROUND On the date hereof (the Petition Date), the Debtor filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code). The Debtor continues to operate and manage its affairs as a debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee, examiner, or committee has been appointed in this chapter 11 case. The Debtor was established in 1986 as the sole distributor in the continental United States of Suzuki automobiles, motorcycles, all-terrain vehicles, and marine outboard engines (the Suzuki Products). Suzuki Motor Corporation (SMC), the 100% interest holder in the Debtor, manufacturers substantially all of the Suzuki Products1 and is not a debtor in this or any other insolvency proceeding. As of the Petition Date, the Debtor has approximately 295 employees across
1
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The ATVs are manufactured by an 80% owned affiliate of the Debtor. An overview of the Suzuki Products manufactured by SMC, its affiliates, and certain unaffiliated entities is included in the Declaration of M. Freddie Reiss, Proposed Chief Restructuring Officer, in Support of Emergency First Day Motions.
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
three divisions: automotive (the Automotive Division), motorcycles and all-terrain vehicles (the Motorcycles/ATV Division), and outboard marine motors and related products (the Marine Division). In the operation of its business, the Debtor purchases Suzuki Products from SMC and certain other non-debtor affiliates. In turn, the Debtor wholesales virtually its entire inventory through a network of independently owned and unaffiliated dealerships located throughout the continental United States. The dealers then market and sell the Suzuki Products to retail customers. As of the Petition Date, there are approximately 220 automotive dealerships, over 900 motorcycle/ATV dealerships, and over 780 outboard marine dealerships. Through dealers, the Debtor also sells a portion of its automotive inventory (less than 10%) to car rental companies and others (less than 2%) that lease the vehicles to retail customers. The Debtor also purchases the majority of its automotive parts from SMC and certain unaffiliated companies and resells them to the automotive dealers and authorized warranty service providers. The Debtor determined that its Automotive Division is facing and will continue to face a number of serious challenges in the highly regulated and competitive automotive industry in the continental U.S. market. The challenges include unfavorable foreign exchange rates, disproportionally high and increasing costs associated with meeting more stringent state and federal automotive regulatory requirements unique to the continental U.S. market, low sales volumes, a limited number of models in its line-up, and existing and potential litigation costs. The Debtor has exhausted all available means to reduce the cost of operating the Automotive Division for it to operate profitably. Accordingly, the Debtor determined that the best way to preserve and enhance the value of its overall business is to wind down new sales of the Automotive Division in the continental U.S. and realign its business focus on the long-term growth of its Motorcycles/ATV and Marine Divisions. Contemporaneous with the filing of this case, the Debtor filed a plan of reorganization (the Plan). Under the proposed Plan, the Motorcycles/ATV and Marine Divisions will remain largely unaffected including the warranties associated with such products. As part of its restructuring, NounCo, Inc., a wholly owned subsidiary of SMC, will purchase the Motorcycles/ATV and Marine
DOCS_SF:81696.6 12832/001
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
Divisions and the parts and service components of the Automotive Division. The restructured Automotive Division intends to honor automotive warranties and authorize the sale of genuine Suzuki automotive parts and services to retail customers through a network of parts and service only dealerships that will provide warranty services. The Debtors Motorcycles/ATV Division is strong and competitively positioned in its market, allowing for long-term growth as economic conditions improve. Similarly, the Marine Division has remained competitive during the recent challenging economic times and the Debtor is working to further build its market share in the marine industry through continued investment in new product development and resuming large-scale marketing events focused on attracting new marine customers. The strategy embodied in the proposed Plan returns the business to its roots in the U.S. market, which began with motorcycles, and is intended to position the overall business for success in the continental U.S. for the benefit of all parties in interest. The Suzuki name is recognized around the world as a brand of quality products that offer reliability and originality. SMC has informed the Debtor that it continues to invest in its operations, improve its overall performance worldwide, and remains committed to manufacturing Suzuki Products for customers around the world. SMCs manufacturing and world-wide distribution of Suzuki automobiles will continue despite the Debtors wind down of the continental U.S. Automotive Division. Additional factual background regarding the Debtor, including its current and historical business operations and the events precipitating its chapter 11 filing, is set forth in detail in the Declaration of M. Freddie Reiss, Proposed Chief Restructuring Officer, in Support of Emergency First Day Motions (the Reiss Declaration) filed contemporaneously with this Motion and incorporated herein by reference. III. RELIEF REQUESTED By this Motion, the Debtor requests the entry of an order, pursuant to sections 105 and 363 of the Bankruptcy Code, approving the Engagement Contract attached hereto as Exhibit 1 to the declaration of Mr. Reiss in support of the Motion (the Reiss Declaration). A copy of the Reiss
DOCS_SF:81696.6 12832/001
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
Declaration is annexed hereto as Exhibit A. Pursuant to the Engagement Contract, Mr. Reiss will serve as CRO and the Additional Personnel will perform other services required of FTI under the Engagement Contract. In support of this Motion, the Debtor relies on the Reiss Declaration. The Debtors relief requested herein is necessary to the successful administration of the Bankruptcy Case. The Debtor is seeking interim relief because the Debtor requires the CRO and FTI to immediately begin providing services of an experienced CRO and crisis managers to guide existing management through a restructuring of the Debtors operations and a successful resolution of its chapter 11 case. Further, any delay of the CROs and FTIs services could cause irreparable harm to the Debtors estate. Mr. Reiss and FTI will assist management in evaluating strategic alternatives, communicating with the Debtors stakeholders, and providing business plan analysis and liquidation analysis for the purpose of preparing a plan of reorganization and disclosure statement to maximize value for the estate. Without such services, it would be difficult, if not impossible, for the Debtor to gather and analyze the financial information necessary to its reorganization and the preparation of a disclosure statement that complies with the requirements of section 1125 of the Bankruptcy Code. A Proposed form of an interim order approving the Motion is annexed hereto as Exhibit B. IV. QUALIFICATIONS A. Qualifications of M. Freddie Reiss Mr. Reiss is a senior managing director at FTI with more than 30 years of experience in strategic planning, cash management, liquidation analysis, covenant negotiations, forensic accounting and valuation. Mr. Reiss specialized in advising on bankruptcies, reorganizations and business restructurings and in providing expert witness testimony for underperforming companies. Mr. Reiss has also acted as interim management, a fiduciary and chief restructuring officer and trustee. The compensation arrangement reflected in the Engagement Contract is consistent with, and typical of, arrangements entered into by Mr. Reiss and other restructuring management consulting experts with respect to rendering similar services for clients such as the Debtor.
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
Mr. Reiss has advised on more than 100 bankruptcy-related matters. Some of his most notable engagements include: Daewoo Motors America; GE, PG&E, America West, K-Mart, Circle K, Orange County Investors Pool and Executive Life, Refco and Iridium. Additionally, Mr. Reiss has advised on multiple out-of-court restructurings for corporations, such as Euro Disney, Musicland, K-Mart, Syncora, Tower Records and Edwards Theatres. Mr. Reisss further qualifications are detailed in the Reiss Declaration. B. Qualifications of FTI FTI is a global business advisory firm that specializes in business reorganization consulting and financial restructuring. FTIs market-leading corporate finance division has advised management, senior lenders and unsecured creditors in many of the most significant restructurings and turnarounds in recent years, including Chrysler Motors LLC, General Motors Corporation, Delphi, Tower Automotive, NewPage Corporation, Chrysler Financial Services Americas LLC, Cadence Innovation LLC, Performance Transportation, Inc., Coach America Holdings Inc., Swift Transportation Inc., Northwest Airlines, American Home Mortgage, Bombay Company, Calpine, Global Power, Tower Automotive, Winn Dixie, Refco, Dana Corporation, Bally Total Fitness, Circuit City, Flying J / Big West Oil, Fremont Investment & Loan, Gottschalks, Hawaiian Telecom, Intermet, Lehman Brothers, LyondellBassell, Townsends, Inc., Tribune Company, Nortel Networks, Washington Mutual, WCI Companies and Fairfield Residential. The Debtors have determined that obtaining the services of a CRO and other personnel with turnaround and chapter 11 experience will substantially enhance their ability to (a) operate and meet their administrative obligations in this Bankruptcy Case and (b) preserve and maximize the value of their assets pending any sale. As such, the Debtors have chosen to utilize FTI personnel as appropriate and have appointed Mr. Reiss, of FTI, to the position of CRO, subject to the Court granting this Motion. Further, as a result of prepetition work performed on behalf of the Debtor, FTI has acquired significant knowledge of the Debtor and its business and is now familiar with the Debtors financial affairs, debt structure, operations and related matters. Likewise, in providing prepetition services to the Debtor since on or about May 18, 2012, FTIs professionals have worked closely with the
DOCS_SF:81696.6 12832/001
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
Debtors management, its financial institutions and other advisors. Accordingly, FTI has developed relevant experience regarding the Debtor that will assist it in providing effective and efficient services to the Debtor in this Bankruptcy Case. As such, the Debtor believes that FTI is well-qualified and able to advise them in a costeffective, efficient and timely manner. The Debtor has been advised by FTI that it will endeavor to coordinate with the other professionals retained in this Bankruptcy Case to eliminate unnecessary duplication or overlap of work. Therefore, the Debtor submits that the retention and employment of FTI is in the best interests of their estates, creditors and other stakeholders in this Bankruptcy Case. V. SERVICES TO BE PROVIDED By this Motion, the Debtor seeks an order authorizing the employment of FTI to provide restructuring management services, crisis management services, and CRO services as described in the Engagement Contract (the Services). FTI will assist in managing all aspects of the Bankruptcy Case leading to the transfer or sale of certain business divisions through a plan or sale motion and a possible refinancing, restructuring or modification of any or all of the Debtors existing debts, other obligations or equity. In addition, FTI will assist in managing the Debtors day-to-day operations, including cash management, financial reporting and business strategy. FTI will provide restructuring and crisis management services as requested by the Debtor and described in the Engagement Contract, including, but not limited to the following: 1. Develop a proactive vendor relations and communications program to ensure an orderly Chapter 11 reorganization process; 2. Prepare, analyze and monitor historical, current and projected financial affairs, including without limitation, if necessary, schedules of assets and liabilities, statements of financial affairs, periodic operating reports, analyses of cash receipts and disbursements, analyses of cash flow forecasts, management of cash flow, analyses of various asset and liability accounts, analyses of any unusual or significant
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
transactions between themselves and any other entities, and analyses of proposed restructuring transactions; 3. Assist the Debtor with the communications and negotiations, at your request and under your guidance, with lenders, creditors, and other parties-in-interest including the preparation of financial information for distribution to such parties-in-interest; 4. Compile and prepare financial information necessary due to requirements of the Bankruptcy Court and/or Office of the US Trustee; 5. Prepare a valuation of businesses and a liquidation valuation for a reorganization plan and disclosure purposes; 6. Along with counsel, review executory contracts and providing recommendations to assume or reject; 7. Along with counsel, identify and/or review preference payments, fraudulent conveyances and any other causes of action; 8. Assess the Debtors long-term viability and business strategy; 9. Assist management to develop strategic and operational plans to address the needs of stakeholders to return the Debtor to financial stability; 10. Work with counsel to develop strategic solutions to address demands of divergent stakeholders; 11. Negotiate and implement a financial restructuring plan; 12. Assist the Debtor in identifying, reviewing and negotiating debtor in possession (DIP) financing, if required; 13. Review and evaluate the claims process; 14. Attend meetings and court hearings as may be required; 15. Render expert testimony as requested from time to time; 16. Assist with the preparation and filing of financial information required by the Court and the Office of the US Trustee; 17. Provide such other similar services as may be requested by ASMC, the Chairman and/or Board of Directors;
DOCS_SF:81696.6 12832/001
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
18. Prepare valuations of the Debtors significant assets, if required; 19. Identify nonessential assets to be sold and managing the sale process; 20. Assist management with the development and execution of a crisis communications plan; and 21. Work with the Board of Directors including the special committee of independent directors. The Debtor agrees that FTI will provide M. Freddie Reiss to serve in the capacity of Chief Restructuring Officer (CRO). Mr. Reiss will continue to operate in the capacity of CRO under the protection of Chapter 11 of the U.S. Bankruptcy Code. In his capacity as CRO, Mr. Reiss will report directly to the Board of Directors. The CROs duties include, but are not limited to the following: 1. Lead efforts to facilitate the Debtors restructuring and sale efforts; 2. Lead management efforts to identify and implement both short-term and long-term liquidity generation and profit improvement in an effort to improve the ongoing viability of the Debtor; 3. Lead negotiations with the secured lenders and other parties, as appropriate, to facilitate restructuring efforts; 4. In his capacity as CRO, Mr. Reiss will not be a member of the Board of Directors, but is expected to participate in Board meetings in order to report on the progress of the turnaround and restructuring initiatives; and, 5. Perform the typical duties of a CRO, and other services as mutually agreed to by Mr. Reiss and the Debtor. To address and handle the above responsibilities on behalf of the Debtor, the CRO will be assisted by Additional Personnel provided through FTI at various levels, all of whom have a wide range of skills and abilities related to this type of assignment. All such Additional Personnel will be subject to the agreements in the Engagement Contract with respect to titles, pay rates and other descriptions set forth therein except as modified by this Motion. The Additional Personnel will serve at the direction of the Debtors Board of Directors. The most recent list of Additional Personnel is set forth in Exhibit 1 to the Engagement Contract and lists employee names, titles and hourly rates and whether such employees are expected to be engaged on a full-time or part-time basis. Notwithstanding anything in the Engagement Contract to the contrary, the Debtor is permitted to indemnify those persons serving as corporate officers on the same terms as provided to the Debtors other officers and directors under the corporate bylaws and applicable state law. There
DOCS_SF:81696.6 12832/001
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
shall be no other indemnification of FTI or its affiliates. Accordingly, as part of this Motion, the Debtor requests that the Court approve the indemnification provisions as set forth therein as modified by the above language. Notwithstanding any provisions of the Engagement Contract to the contrary, consistent with the Jay Alix Protocol implemented by the Office of the United States Trustee, Mr. Reiss and FTI agree that: (a) In the event the Debtor seeks to have any of the Additional Personnel assume executive officer positions other than Mr. Reiss, or to materially change the terms of the engagement by modifying the functions of the executive officer personnel, a motion to modify the employment as such will be filed. No principal, employee, or independent contractor of FTI and its affiliates will serve as a director of the Debtor during the pendency of the Debtors chapter 11 case. For a period of three (3) years after the conclusion of the engagement, neither FTI nor any of its affiliates will make any investments in the Debtor. VI. PROFESSIONAL COMPENSATION The Debtor and FTI have agreed to the proposed compensation and payment structure summarized below and set forth in detail in the Engagement contract (the Fee Structure): (a) Monthly Fee: The Debtor has agreed to pay the CRO a monthly, nonrefundable advisory fee of $100,000 (the Monthly Fees) for the services of the CRO outlined in the Engagement Contract. The initial term for CRO services will be six (6) months and month-to-month thereafter. Payment will be due following entry of an order approving the Services Agreement between the Debtor and FTI and on the 1st of each month thereafter. Payments are to be made directly to Mr. Reiss. If a plan of reorganization is confirmed, Mr. Reiss will transition to become the plan administrator at a monthly rate to be determined by the parties at such time. It is contemplated that the CRO will average approximately thirty (30) hours per week over the initial six (6) month term of the Engagement. Standard Hourly Rate: Fees in connection with this Engagement for Additional Personnel assisting the CRO will be based upon the time incurred providing the Services, multiplied by FTIs standard hourly rates applicable in the United States, summarized as follows: Per Hour Senior Managing Directors Directors / Managing Directors Consultants / Senior Consultants Administrative / Paraprofessional
DOCS_SF:81696.6 12832/001
(b)
11 12
(c)
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b)
$780 - $895 $560 - $745 $280 - $530 $115 - $230
Case 8:12-bk-22808-CB
Desc
1 2 3
(c)
Cash on Account: The Debtor paid FTI $500,000 (the Deposit or Retainer), which funds are to be held on account to be applied to FTIs professional fees and expenses for services provided under the Engagement Contract until the completion of the engagement. Success Fee: FTI retains the ability to request a success fee on or after the effective date of a plan of reorganization confirmed in this Bankruptcy Case. The structure of the success fee will be negotiated and determined by the parties at such time.
(d) 4 5 6 7 8 9 10
In addition to the hourly rates set forth above, the Debtor shall reimburse both FTI and the CRO respectively for all reasonable out-of-pocket expenses incurred in connection with this engagement such as travel, lodging, telephone and facsimile charges. FTI shall file with the Court, with copies to the United States Trustee and all official committees, a monthly report of staffing on the engagement for the previous month. Such report shall include the names and functions filled of the individuals assigned. All staffing shall be subject to review by the Court in the event an objection is filed. FTI shall file with the Court (and serve copies on the United States Trustee and any official committees appointed in this case contemporaneously with such filing) reports of compensation earned and expenses incurred on at least a quarterly basis. Such reports shall contain summary charts which describe services provided, identify the compensation earned by each executive officer and staff employee provided, and itemize the expenses incurred. Time records for all FTI Additional Personnel other than the CRO shall (i) be appended to the reports, (ii) contain detailed time entries describing the task(s) performed, and (iii) be organized by project category. When FTI personnel are providing services at an hourly rate, such personnel shall record their time entries in increments of no greater than one-half hour (.5). All compensation shall be subject to review by the Court in the event an objection is filed. The first quarterly report will be submitted forty-five (45) days from the end of the first calendar quarter after the Petition Date and will cover the period to and including the last day of the first quarter after the Petition Date. This procedure will continue at three month intervals thereafter. Because FTI is not being employed as a professional under section 327 of the Bankruptcy Code, it will not be submitting regular fee applications pursuant to sections 330 and 331 of the Bankruptcy Code. FTI will, however, submit certain reports described above.
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DOCS_SF:81696.6 12832/001
10
Case 8:12-bk-22808-CB
Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 18 of 78 VII. GENERAL DISINTERESTEDNESS OF FTI
Desc
1 2 3 4 5 6 7 8 9 10
Although the Debtor does not propose to retain FTI under section 327 of the Bankruptcy Code, FTI has nonetheless performed a computerized conflict check and, to the best of its knowledge and except to the extent disclosed in the Reiss Declaration, does not hold any interest adverse to the interests of the Debtors estate. Furthermore, by the Reiss Declaration, Mr. Reiss provides full and complete disclosure in order to demonstrate that the Firm satisfies all requirements that would be imposed by the Bankruptcy Code and Bankruptcy Rules for employment in this case. FTI has agreed not to share with any person or entity any compensation received by it in the Debtors case, except as among the members, associates, and employees of FTI. Neither FTI, nor any of its principals, employees, agents or affiliates has any connection with the Debtor, its creditors, the United States Trustee or any other party with an actual or potential interest in the Bankruptcy Case or their respective attorneys or accountants, except as set forth in the Reiss Declaration. From time to time, FTI has provided services, and likely will continue to provide services, to certain creditors of the Debtor and various other parties adverse to the Debtor in matters unrelated to the Bankruptcy Case. These unrelated matters involve numerous attorneys, financial advisors, and creditors, some of whom may be claimants or parties with actual or potential interests in this case or may represent such parties. FTI personnel and their family members may have business associations with certain creditors of the Debtor unrelated to the Bankruptcy Case. Additionally, in the ordinary course of its business, FTI may engage counsel or other professionals in unrelated matters who now represent, or who may in the future represent, creditors, or other interested parties in the Bankruptcy Case. The Debtor maintains business relationships with numerous shareholders, lenders, creditors and other parties. FTI may have advisory or other commercial or professional relationships with such entities or persons completely unrelated to the Debtor or its business affairs. No such relationships are in any way related to the Bankruptcy Case.
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DOCS_SF:81696.6 12832/001
11
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
Because the Debtor is a large enterprise with numerous creditors and other relationships, FTI is unable to state with certainty that every client relationship or other connection has been disclosed. In this regard, if FTI discovers additional information that requires disclosure, FTI will file a supplemental disclosure with the Court. FTI has not been retained to assist any entity or person other than the Debtor on matters relating to, or in connection with, the Bankruptcy Case. If this Court approves the proposed employment of FTI by the Debtor, FTI will not accept any engagement or perform any services for any entity or person other than the Debtor in the Bankruptcy Case. FTI will, however, continue to provide professional services to, and engage in commercial or professional relationships with, entities or persons that may be creditors of the Debtor or parties in interest in the Bankruptcy Case, provided, however, that such services do not relate to, or have any direct connection with, the Bankruptcy Case. The Debtor does not owe FTI any amount for services performed or expenses incurred prior to the Petition Date and thus FTI is not a prepetition creditor of the Debtor. Accordingly, the Debtor believes that FTI is a disinterested person as defined in section 101(14) of the Bankruptcy Code. VIII. INDEMNIFICATION AND LIABILITY LIMITATION PROVISIONS The Engagement Contract contains standard indemnification and limitation of liability language with respect to FTIs services. Notwithstanding any provisions of the Engagement Contract to the contrary, in accordance with the Protocol, FTI has agreed otherwise, as set forth below. With respect to Mr. Reiss in his capacity as CRO, the Debtor shall indemnify the CRO on the same terms as provided to the Debtors directors under the Debtors by-laws and applicable state law.2
Contemporaneously with the filing of this Motion, the Debtor filed the Motion of Debtor for an Order Authorizing the Debtor to Honor All Obligations Arising Under Indemnity Agreements With its Directors and Proposed Chief Restructuring Officer (the D&O Indemnification Motion). Mr. Reiss is among the individuals covered by the D&O Indemnification Motion. The scope of the proposed indemnification hereunder is intended to be substantially similar to the terms of the indemnification under the D&O Indemnification Motion. However, the relief sought by the D&O
DOCS_SF:81696.6 12832/001
2
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
12
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
With respect to the Additional Personnel, the Debtor shall have no obligation to indemnify FTI or to provide contribution or reimbursement to FTI for any claim or expense that is either (a) judicially determined to have resulted primarily from the willful misconduct, gross negligence, bad faith or self-dealing of FTI; or (b) settled prior to a judicial determination as to FTIs willful misconduct, gross negligence, bad faith or self-dealing but determined by the Court, after notice and a hearing, to be a claim or expense for which FTI should not receive indemnity, contribution or reimbursement under the terms of the Engagement Contract. If FTI believes that it is entitled to the payment of any amounts by the Debtor on account of the Debtors indemnification with respect to the Additional Personnel, including without limitation the advancement of defense costs, before the earlier of (a) the entry of an order confirming a chapter 11 plan in this Bankruptcy Case (that order having become a final order no longer subject to appeal) and (b) the entry of an order closing, dismissing or converting this chapter 11 case, FTI must file an application to this Court seeking such payment, and the Debtor may not pay any such amounts to FTI before the entry of an order by this Court approving the payment; provided, however, that the foregoing is intended only to specify the period of time during which the Court shall have jurisdiction over any request for indemnification by FTI, and is not a provision limiting the duration of the Debtors obligation to indemnify FTI. Finally, notwithstanding any provisions of the Engagement Contract to the contrary, FTI has agreed not to raise or assert any defense based upon jurisdiction, venue, abstention or otherwise to the jurisdiction and venue of this Court to hear or determine any controversy or claims with respect to, in connection with, arising out of, or in any way related to FTIs engagement in this Bankruptcy Case. IX. BASIS FOR RELIEF Section 363 of the Bankruptcy Code provides, in relevant part, that a debtor in possession after notice and a hearing, may use, sell or lease, other than in the ordinary course of business,
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Indemnification Motion and the DIP Financing Motion also includes collateral securing the Debtors indemnification obligation and such collateral is not intended to apply to the relief sought by this Motion.
DOCS_SF:81696.6 12832/001
13
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
property of the estate. 11 U.S.C. 363(b). Under applicable case law in this and other circuits, if a debtors proposed use of its assets pursuant to section 363(b) of the Bankruptcy Code represents a reasonable business judgment on part of the debtor, such use should be approved. See e.g., Myers v. Martin (In re Martin), 91 F.3d 389, 395 (3d Cir. 1996) (citing Fulton State Bank v. Schipper (In re Schipper), 933 F.3d 513, 515 (7th Cir. 1991)); Stephens Indus., Inc. v. McClung, 789 F.2d 386, 390 (6th Cir. 1986); Comm. Of Equity Sec. Holders v. Lionel Corp. (In re Lionel), 722 F.2d 1063, 1070 (2d Cir. 1983); In re Montgomery Ward Holding Corp., 242 B.R. 147, 153 (Bankr. D. Del. 1999); In re Delaware & Hudson R.R. Co., 124 B.R. 169, 176 (Bankr. D. Del. 1991) (courts have applied the sound business purpose test to evaluate motions brought pursuant to section 363(b)); In re Integrated Resources, Inc., 147 B.R. 650, 656 (Bankr. S.D.N.Y. 1992) (quoting Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985)) ([T]he business judgment rule is a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the actions were in the best interests of the company.). Bankruptcy courts have analyzed the propriety of a debtors employment of corporate restructuring officers, advisors and professionals under section 363 on numerous occasions and have determined it is an appropriate exercise of the debtors business judgment to employ a restructuring professional in this manner.3 See In re Westcliff Medical Laboratories, Inc., Case No. 10-16743 (Bankr. C.D. Cal. June 25, 2010); In re Fatburger Restaurants of California, Inc., et al., Case No. 09-13965 (Bankr. C.D. Cal. Feb. 16, 2011); In re Fairfield Residential LLC, Case No. 09-14378 (Bankr. D. Del Jan 13, 2010); In re Motor Coach Industries International, Inc., Case No. 08-12136 (Bankr. D. Del Oct. 15, 2008) (approving retention of CRO and crisis managers); In re Pappas Telecasting, Inc., Case No. 08-10916 (Bankr. D. Del June 26, 2008); In re Linens Holding Co., Case No. 08-10832 (CSS) (Bankr. D. Del May 28, 2008); In re Hoop Holdings, LLC, Case No. 08-10544 (BLS) (Bankr. D. Del Apr. 22, 2008); In re Leiner Health Products, Inc., Case No. 08-10446 (KJC) (Bankr. D. Del. Apr. 8, 2008); In re TOUSA, Inc., Case No. 08-10928 (Bankr. S.D. Fla. Mar. 26,
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Because of the voluminous nature of the orders cited herein, they are not annexed to this Motion. Copies of these orders are available upon request made to the Debtors proposed counsel.
DOCS_SF:81696.6 12832/001
14
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
2008); In re American Home Mortgage Holdings, Inc., Case No. 07-11047 (Bankr. D. Del. Sept. 5, 2007); In re Calpine Corp., Case No. 05-60200 (Bankr. S.D.N.Y. Jan 17, 2007). A debtor, pursuant to section 363(b), may employ one or more professionals to act as their restructuring officers or managers or crisis officers or managers. See In re Tokheim Corp., Case No. 02-13437 (RJN) (Bankr. D. Del. Feb. 25, 2003). The retention of interim corporate officers and other temporary employees is proper under section 363 of the Bankruptcy Code. Numerous courts have authorized retention of officers utilizing this provision of the Bankruptcy Code, including this Court. See In re Westcliff Medical Laboratories, Inc., Case No. 10-16743 (Bankr. C.D. Cal. June 25, 2010); In re Fatburger Restaurants of California, Inc., et al., Case No. 09-13965 (Bankr. C.D. Cal. Feb. 16, 2011); In re Fairfield Residential LLC, Case No. 09-14378 (Bankr. D. Del Jan. 13, 2010); In re The Holliston Mill, Inc., Case No. 07-10687 (MFW) (Bankr. D. Del. June 6, 2007); In re Sea Containers Ltd., Case No. 06-11156 (KJC) (Bankr. D. Del. May 8, 2007); In re Adva-Lite, Inc., Case No. 07-10264 (KJC) (Bankr. D. Del. Mar. 16, 2007); In re Global Home Products, LLC, Case No. 06-10340 (KG) (Bankr. D. Del. May 4, 2006); In re World Health Alternatives, Inc., Case No. 0610166 (PJW) (Bankr. D. Del. Mar. 15, 2006). Additionally, the Courts general equitable powers codified in section 105(a) of the Bankruptcy Code provide ample authority for the relief requested herein. Section 105(a) of the Bankruptcy Code empowers the court to issue any order, process, or judgment that is necessary to carry out the provisions of this title. See 11 U.S.C. 105(a). See also United States v. Energy Resources Co., 495 U.S.545, 549 (1990); In re Continental Airlines, 203 F.3d 203, 211 (3d Cir. 2000) (Section 105(a) of the Bankruptcy Code supplements courts specifically enumerated bankruptcy powers by authorizing orders necessary or appropriate to carry out provisions of the Bankruptcy Code.); Baron & Budd, P.C. v. Unsecured Asbestos Claimants Comm., 2005 WL 435207, *14 (D.N.J. Feb. 25, 2005) (reciting the power of the bankruptcy court to issue any order that is necessary or appropriate to carry out the provisions of [title 11]). This Court in other chapter 11 cases has approved the employment of chief restructuring officer and its staff pursuant to section 363 of the Bankruptcy Code on terms and conditions substantially similar to those in the Engagement Contract. See, e.g., In re Fatburger Restaurants of
DOCS_SF:81696.6 12832/001
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
15
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
California, Inc., Case No. 09-13965 (GM) (Bankr. C.D. Cal. Feb. 16, 2011) [Docket No. 506]; In re Westcliff Medical Laboratories, Inc., Case No. 10-16743 (TA) (Bankr. C.D. Cal. June 25, 2010) [Docket No. 151]. The terms and conditions of the Engagement Contract were negotiated by the Debtor and FTI at arms length and in good faith. The Debtor submits that the employment of FTI is a sound exercise of its business judgment and satisfies section 363 of the Bankruptcy Code as FTIs services are necessary and essential to the Debtors restructuring efforts. Mr. Reiss and the Additional Personnel assigned to this engagement have extensive experience providing management and financial services to distressed companies. In addition, since the beginning of FTIs engagement with the Debtor in May 2012, FTI, working in conjunction with the Debtors senior management, has provided invaluable assistance in, among other things, analyzing the Debtors overall operations and financial condition, negotiating with the Debtors creditors and stakeholders, and coordinating the Debtors preparation for filing this Bankruptcy Case. A. Retention of FTI Is Critical to the Debtors Success Denying the relief requested herein would deprive the Debtor of the assistance of a highly qualified CRO and disadvantage the Debtor and all parties in interest. Indeed, the Debtor would be forced to engage a new CRO who lacks an equivalently thorough understanding of the Debtors business and restructuring initiatives both already in progress and soon to be implemented. Further, hiring a new CRO would involve a steep learning curve, significant time and additional resources all of which are in short supply given the brief timeframe within which the Debtor seeks to emerge from this Bankruptcy Case. Accordingly, the Debtor respectfully submits that the services provided by FTI are critical to the success of the Bankruptcy Case and requests that the Court approve the Engagement Contract in substantially the form attached to the Reiss Declaration as Exhibit 1. The Debtor submits that the employment of FTI and Mr. Reiss under the terms of the Engagement Contract would greatly benefit the Debtors estate and creditors. The absence of executives capable of achieving a successful reorganization would severely hinder the Debtors ability to reorganize in an efficient and effective manner.
DOCS_SF:81696.6 12832/001
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
16
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
Moreover, Mr. Reiss is clearly qualified for the position for which he is being employed. The Debtor has determined that the terms of the Engagement Contract are within the range of those for senior executive officers employed with the companies of comparable size, value and reputation. Accordingly, the Debtors decision to enter into the Engagement Contract reflects an exercise of the Debtors sound business judgment. X. NOTICE The Debtor has provided notice of the Motion to: (a) the United States Trustee for the Central District of California; (b) the creditors appearing on the list filed in accordance with Rule 1007(d) of the Federal Rules of Bankruptcy Procedure; (c) counsel to the Debtors prepetition and postpetition lender; (d) all entities that have requested notice of the proceedings in this chapter 11 case pursuant to Bankruptcy Rule 2002. The Debtor submits that no other or further notice be given in light of the circumstances of this Bankruptcy Case. WHEREFORE, the Debtor respectfully requests the entry of a proposed interim order, substantially in the form attached hereto as Exhibit B, approving the Engagement Contract nunc pro tunc to the Petition Date and granting such other and further relief as the Court deems appropriate under the circumstances of this Bankruptcy Case. Dated: November 5, 2012 AMERICAN SUZUKI MOTOR CORPORATION
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
By: Takashi Iwatsuki Title: Chairman of the Board
DOCS_SF:81696.6 12832/001
17
Case 8:12-bk-22808-CB
Desc
EXHIBIT A (Reiss Declaration)
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
Richard M. Pachulski (CA Bar No. 90073) James I. Stang (CA Bar No. 94435) Dean A. Ziehl (CA Bar No. 84529) Debra I. Grassgreen (CA Bar No. 169978) Linda F. Cantor (CA Bar No. 153762) PACHULSKI STANG ZIEHL & JONES LLP 10100 Santa Monica Blvd., Suite 1300 Los Angeles, CA 90067-4114 Telephone: 310/277-6910 Facsimile: 310/201-0760 E-mail: rpachulski@pszjlaw.com jstang@pszjlaw.com dziehl@pszjlaw.com dgrassgreen@pszjlaw.com lcantor@pszjlaw.com Proposed Attorneys for Debtor and Debtor in Possession UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re: American Suzuki Motor Corporation,1 Debtor. DECLARATION OF M. FREDDIE REISS IN SUPPORT OF DEBTORS MOTION FOR ENTRY OF AN ORDER PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE APPROVING ENGAGEMENT CONTRACT OF (I) M. FREDDIE REISS AS CHIEF RESTRUCTURING OFFICER OF THE DEBTOR AND (II) FTI CONSULTING, INC. TO ASSIST THE CRO, NUNC PRO TUNC TO THE PETITION DATE M. Freddie Reiss, being duly sworn, says: 1. I have personal knowledge of the facts stated herein, except as to those facts stated Case No.: 12Chapter 11 ( )
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
upon information and belief, and as to those facts, I believe them to be true. If called as a witness to testify herein, I could and would testify completely to the following:
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
2.
I am a Senior Managing Director of FTI Consulting, Inc. (FTI) and am duly
authorized to make this declaration (the Declaration) on behalf of FTI. 3. I submit this Declaration and the related exhibits in support of the Motion (the
Motion)2 of the above-captioned debtor and debtor in possession (the Debtor) for an order approving the Engagement Contract, pursuant to which I will serve as Chief Restructuring Officer (CRO) and additional individuals (the Additional Personnel) employed by FTI will provide other critical crisis management services to the Debtor. 4. FTI is a global business advisory firm that specializes in business reorganization
consulting and financial restructuring. Founded in 1982, FTI has more than 3,500 professionals in most major business centers in the world, and its client list comprises many of the Global 1000, as well as a majority of the largest 25 banks and top 100 law firms in the world. FTI is designed to address the interrelated challenges that can affect an organizations enterprise value and offers highly specialized expertise in the areas of compliance, risk, reputation, liability, performance, finance and information. In particular, FTIs market-leading corporate finance division has advised management, senior lenders and unsecured creditors in many of the most significant restructurings and turnarounds in recent years, including; Chrysler Motors LLC, General Motors Corporation, Delphi, Tower Automotive, NewPage Corporation, Chrysler Financial Services Americas LLC, Cadence Innovation LLC, Performance Transportation, Inc., Coach America Holdings Inc., Swift Transportation Inc., Northwest Airlines, American Home Mortgage, Bombay Company, Calpine, Global Power, Tower Automotive, Winn Dixie, Refco, Dana Corporation, Bally Total Fitness, Circuit City, Flying J / Big West Oil, Fremont Investment & Loan, Gottschalks, Hawaiian Telecom, Intermet, Lehman Brothers, LyondellBassell, Townsends, Inc., Tribune Company, Nortel Networks, Washington Mutual, WCI Companies and Fairfield Residential. Services to Be Provided 5. As further detailed in the Motion, and pursuant to the Engagement Contract (annexed
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
hereto as Exhibit 1), the Debtor seeks an order authorizing the employment of FTI to provide
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion.
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
restructuring and crisis management services, in which I shall act as the CRO of the Debtor and other professionals employed by FTI will provide professional services as deemed necessary. 6. I believe that I and the members and associates of FTI who may perform services in
this case are well qualified to perform the services requested by the Debtor. 7. None of the services that FTI will render in connection with the Debtors chapter 11
case will be duplicative of the services rendered by any of the other professionals employed by the Debtor in this Bankruptcy Case. 8. Notwithstanding anything in the Engagement Contract to the contrary, the Debtor is
permitted to indemnify those persons serving as corporate officers on the same terms as provided to the Debtors other officers and directors under the corporate bylaws and applicable state law. There shall be no other indemnification of FTI or its affiliates. General Disinterestedness of FTI 9. In connection with our proposed retention by the Debtor, FTI has conducted an
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
investigation to ascertain FTIs connections with the Debtor and various parties in interest in the Bankruptcy Case (the Interested Parties). The identities of the Interested Parties are set forth on Schedule 1 attached hereto and incorporated by reference. FTIs investigation has included, among other things, a review of FTIs internal computer database containing the names of persons and entities that have previously engaged FTI. 10. The attached Schedule 2 identifies and details any relationships discovered through
such investigation that FTI has with any Interested Parties in matters unrelated to this Bankruptcy Case. To the best of my knowledge after due inquiry, neither myself nor FTI is or has been employed by any party in interest of any other entity, other than the Debtor, in connection with the Debtors Bankruptcy Case. 11. By way of further disclosure: a. Prior to the commencement of this Bankruptcy Case, FTIs professionals provided restructuring, financial services and crisis communications services to the Debtor. From time to time, FTI has provided services, and likely will continue to provide services to certain attorneys, other professionals, creditors (including lenders) and/or security holders of the Debtor and various other parties, some 4
b.
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
of whom may be providing services to, or may be adverse to, or may be otherwise connected to the Debtor, in each case, in matters unrelated to this Bankruptcy Case. c. In the ordinary course of business, investment funds affiliated with FTI and certain of FTIs employees, as well as investment funds in which such employees may have financial interests, but over whose investment decisions such employees have no input or control, may acquire, hold or sell long or short positions, or trade or otherwise effect transactions, in debt, equity, and other securities and financial instruments, and/or investments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion. Moreover, the FTI employees who are working on this Bankruptcy Case are subject to compliance mechanisms and policies and procedures designed to prevent confidential, non-public information from being improperly shared. FTI personnel may have business associations with certain creditors of the Debtor or counsel or other professionals involved in this Bankruptcy Case on matters unrelated to this Bankruptcy Case. In addition, in the ordinary course of this business, FTI may engage counsel or other professionals in unrelated matters who now represent, or in the future may represent, creditors or other interested parties in this Bankruptcy Case.
d.
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
12.
FTI has provided and likely will continue to provide various services unrelated to the
Debtors case for various parties, creditors or equity security holders of the Debtor, including certain parties listed on Schedule 2. To the best of my knowledge, no services have been provided to those parties that involve the rights in the Debtors case, nor does FTIs involvement in this case compromise FTIs ability to continue to such services. FTI may in the future provide services unrelated to the Debtors case for other creditors, equity security holders or parties in interest in this case. To the extent that FTI discovers additional relationships, it will file a supplemental disclosure with the Court as promptly as possible. 13. To the best of my knowledge, FTI is a disinterested person as that term is defined
in section 101(14) of title 11 of the United States Code (the Bankruptcy Code), as modified by section 1107(b) of the Bankruptcy Code, in that FTI: a. b. is not a creditor, equity security holder or insider of the Debtor; is not and was not, within 2 years before the date of the filing of the petition, a director, officer or employee of the Debtor, with the exception of my being appointed CRO immediately following the filing as a part of the restructuring services provided by FTI to the Debtor; does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or 5
c. 28
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
indirect relationship to, in connection with, or interest in, the Debtor, or for any other reason. 14. As part of a diverse business, FTI is employed in numerous cases, proceedings and
transactions involving many different professionals, including attorneys, investment banks and financial consultants, some of which may represent claimants and parties-in-interest in the Debtors chapter 11 case. Further, FTI has in the past, and may in the future, be represented by several attorneys and law firms that are active in bankruptcy cases, some of which may be involved in this proceeding. In addition, FTI has in the past, and likely will in the future, be working with or against other professionals involved in this case in matters unrelated to this case. Based on our current knowledge of the professionals involved, and to the best of my knowledge, none of these business relationships constitute an interest materially adverse to the Debtor herein in matters upon which FTI is to be employed, and none are in connection with this case. 15. Moreover, except as otherwise provided in this declaration, to the best of my
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
knowledge, information and belief, insofar as I have been able to ascertain after due inquiry, other than in connection with this bankruptcy case and FTIs provision of services to the Debtor prior to the Petition Date, FTI does not (a) have any connection with the Debtor, its creditors or any other party in interest herein, the United States Trustee, anyone employed in the Office of the United States Trustee, or any United States Bankruptcy Judge or District Judge for the Central District of California, Santa Ana Division or (b) have any connection with or hold or represent any interest materially adverse to the Debtor, its estate, its creditors or any other party in interest herein in the matters for which FTI is proposed to be retained. 16. To the best of my knowledge, FTI has not been retained to assist any entity or person
other than the Debtor on matters relating to, or in connection with this case. If this Court approves the proposed employment outlined in the Engagement Contract, FTI will not accept any engagement or perform any services in this case for any entity or person other than the Debtor. FTI may, however, continue to provide accounting services to, and engage in commercial or professional relationships with, entities or persons that may be creditors of the Debtor or parties-in-interest in this
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
chapter 11 case, provided, however, that such services do not and will not relate to, or have any direct connection with, this chapter 11 case. Disclosure of Compensation 17. Upon the execution of the Engagement Contract, the Debtor paid FTI cash on account
of $500,000 (the Deposit or Retainer), with any used amounts to be returned to the Debtor upon the completion of the engagement. As of the Petition Date, FTI has received approximately $2,994,136.50 from the Debtor on account of the Monthly Fees and services provided at the Standard Hourly Rates and has received $242,467.62 for reimbursement of expenses. 18. As of the Petition Date, FTI did not hold a prepetition claim against the Debtor for
services rendered. 19. FTI has not received any promises as to payment or compensation in connection with
11 12
this Bankruptcy Case other than in accordance with the provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules and the United States Trustee Guidelines, and as disclosed herein. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge, information and belief. Executed this 5th day of November, 2012, at Los Angeles, California
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
M. Freddie Reiss Title: Senior Managing Director
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
EXHIBIT 1 (Engagement Contract)
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB

FTI Consulting, Inc. 633 West Fifth Street 16th Floor Los Angeles, CA 90071
Desc
CONFIDENTIAL November 2, 2012
Mr. Takashi Iwatsuki Chairman American Suzuki Motor Corporation, Inc. 134 Santa Louisa Irvine, CA 92606 Re: Chapter 11 Case of American Suzuki Motor Corporation, Inc. Dear Mr. Iwatsuki: The purpose of this letter is to confirm the understanding and agreement (the Agreement) between American Suzuki Motor Corporation, Inc. (the Company, the Client or ASMC) and FTI Consulting, Inc. (FTI or the Firm) concerning the Clients engagement of FTI to provide certain temporary professionals (Additional Personnel) to ASMC for CRO services, crisis management services and restructuring management services (the Services) in connection with the chapter 11 bankruptcy filing of ASMC. This Agreement is effective on November 5th, 2012 (the Effective Date). The FTI Standard Terms and Conditions attached hereto as Exhibit A are also incorporated herein and forms part of this Agreement. 1. Temporary Officers, Hourly Temporary Employees and Services
FTI will provide M. Freddie Reiss to serve as the Clients Chief Restructuring Officer (the CRO) reporting to ASMCs Board of Directors in connection with the Engagement commencing as of the petition date if bankruptcy is filed and approved by the court. The CRO, as well as any Additional Personnel, (as defined below), shall have such duties as the Chairman of ASMC may from time to time determine, and shall at all times report to and be subject to supervision by ASMC and its Chairman. Without limiting the foregoing, the CRO, as well as any Additional Personnel, shall work with other senior management of ASMC, and other professionals, to provide the Services. In addition to providing the CRO, FTI may also provide the Client with additional staff (the Additional Personnel and, together with the CRO, the FTI Professionals), subject to the terms and conditions of this Agreement. The Additional Personnel may be assisted by or replaced by other FTI professionals reasonably satisfactory to ASMC, as required, who shall also become Additional Personnel for purposes hereof. The initial schedule of Additional Personnel is set out on Exhibit B. FTI will keep ASMC reasonably informed as to FTIs staffing. If cases under the Bankruptcy Code are commenced and FTIs retention is approved, our role will include serving as principal bankruptcy financial advisors to the debtor and debtor in possession in those cases under a general retainer, subject to court approval. Our role also will encompass all out-of-court planning and negotiations attendant to these tasks. The services we will provide in connection with the Engagement will encompass all services normally and reasonably associated with this type of engagement that we are requested and are able to provide and that are consistent with our ethical obligations. With respect to all matters of our Engagement, we will
1
Case 8:12-bk-22808-CB
Desc
coordinate closely with the Company as to the nature of the services that we will render and the scope of our engagement. As usual, our Engagement is to represent the Company and not its individual directors, officers, employees or shareholders. However, we anticipate that in the course of that Engagement, we may provide information or advice to directors, officers or employees in their corporate capacities. The engagement of FTI to perform the Services shall be subject to the approval of the Bankruptcy Court and shall be substantially as provided in this Agreement as modified by the retention order approved by the Bankruptcy Court. Client agrees, at Clients expense, to file an application (the Application) to employ FTI as CRO, restructuring manager and crisis manager nunc pro tunc to the Effective Date pursuant to 363 of the Bankruptcy Code. The Client agrees to file all required applications, including the Application, for the employment or retention of FTI at the earliest practical time. FTI services as restructuring and crisis management manager will include, but not be limited to the following: 1. Develop a proactive vendor relations and communications program to ensure an orderly Chapter 11 reorganization process; 2. Prepare, analyze and monitor historical, current and projected financial affairs, including without limitation, if necessary, schedules of assets and liabilities, statements of financial affairs, periodic operating reports, analyses of cash receipts and disbursements, analyses of cash flow forecasts, management of cash flow, analyses of various asset and liability accounts, analyses of any unusual or significant transactions between themselves and any other entities, and analyses of proposed restructuring transactions; 3. Assist the Debtor with the communications and negotiations, at your request and under your guidance, with lenders, creditors, and other parties-in-interest including the preparation of financial information for distribution to such parties-in-interest; 4. Compile and prepare financial information necessary due to requirements of the Bankruptcy Court and/or Office of the US Trustee; 5. Prepare a valuation of businesses and a liquidation valuation for a reorganization plan and disclosure purposes; 6. Along with counsel, review executory contracts and providing recommendations to assume or reject; 7. Along with counsel, identify and/or review preference payments, fraudulent conveyances and any other causes of action; 8. Assess the Debtors long-term viability and business strategy; 9. Assist management to develop strategic and operational plans to address the needs of stakeholders to return the Debtor to financial stability; 10. Work with counsel to develop strategic solutions to address demands of divergent stakeholders; 11. Negotiate and implement a financial restructuring plan; 12. Assist Debtor in identifying, reviewing and negotiating debtor in possession (DIP) financing, if required; 13. Review and evaluate the claims process; 14. Attend meetings and court hearings as may be required; 15. Render expert testimony as requested from time to time; 16. Assist with the preparation and filing of financial information required by the Court and the Office of the US Trustee; 17. Provide such other similar services as may be requested by ASMC, the Chairman and/or Board of Directors; 18. Prepare valuations of the Debtors significant assets, if required;
2
Case 8:12-bk-22808-CB
Desc
19. Identify nonessential assets to be sold and managing the sale process; 20. Assist management with the development and execution of a crisis communications plan; and 21. Work with the Board of Directors including the special committee of independent directors. The CROs duties include, but are not limited to the following: 1. Lead efforts to facilitate the Companys restructuring and sale efforts; 2. Lead management efforts to identify and implement both short-term and long-term liquidity generation and profit improvement in an effort to improve the ongoing viability of the Company; 3. Lead negotiations with the secured lenders and other parties, as appropriate, to facilitate restructuring efforts; 4. In his capacity as CRO, Mr. Reiss will not be a member of the Board of Directors, but is expected to participate in Board meetings in order to report on the progress of the turnaround and restructuring initiatives; and 5. Perform the typical duties of a CRO, and other services as mutually agreed to by Mr. Reiss and the Company. The Services do not include (i) audit, legal, tax, environmental, accounting, actuarial, employee benefits, insurance advice or similar specialist and other professional services which are typically outsourced and which shall be obtained directly where required by the Client at Clients expense; or (ii) investment banking, including valuation or securities analysis, including advising any party or representation of the Client on the purchase, sale or exchange of securities or representation of the Client in securities transactions. FTI is not a registered broker-dealer in any jurisdiction and will not offer advice or its opinion or any testimony on valuation or exchanges of securities or on any matter for which FTI is not appropriately licensed or accredited. An affiliate of FTI is a broker-dealer but is not being engaged by the Client to provide any investment banking or broker-dealer services. The Client agrees to supply office space, and office and support services to FTI as reasonably requested by FTI in connection with the performance of its duties hereunder. 2. Compensation to FTI
Monthly Fee The Debtor has agreed to pay the CRO a monthly, non-refundable advisory fee of $100,000 (the Monthly Fees) for the services of the CRO outlined in the Engagement Contract. The initial term for CRO services will be 6 (six) months and month-to-month thereafter. Payment will be due following entry of an order approving the Services Agreement between the Debtor and FTI and on the 1st of each month thereafter. Payments are to be made directly to Mr. Reiss. If a plan of reorganization is confirmed, Mr. Reiss will transition to become the plan administrator at a monthly rate to be determined by the parties at such time. It is contemplated that the CRO will average approximately thirty (30) hours per week over the initial six (6) month term of the Engagement. Standard Hourly Rates Fees in connection with this Engagement for Additional Personnel will be based upon the time incurred providing the Services, multiplied by FTIs standard hourly rates applicable in the United States. The
Case 8:12-bk-22808-CB
Desc
normal hourly billing rates for professionals with the skills and experience needed for engagements of this kind, which are subject to periodic revision, are as follows:
Senior Managing Directors Directors / Managing Directors Consultants/Senior Consultants Administrative / Paraprofessionals Cash on Account
Per Hour (USD) $780- 895 $ 560-745 $ 280-530 $ 115-230
The Debtor paid FTI $500,000 (the Deposit or Retainer), which funds are to be held on account to be applied to FTIs professional fees and expenses for services provided under the Engagement Contract until the completion of the engagement. Success Fee FTI retains the ability to request a success fee on or after the effective date of a plan of reorganization confirmed in this Bankruptcy Case. The structure of the success fee will be negotiated and determined by the parties at such time.
3.
Other Compensation and Payment Procedures
In addition to the fees outlined above, FTI will bill for reasonable allocated and direct expenses which are likely to be incurred on your behalf during this Engagement. Allocated expenses include the cost of items which are not billed directly to the engagement, including administrative support and other overhead expenses that are not billed through as direct reimbursable expenses, and are calculated at 6.0% of FTIs standard professional rates. Direct expenses include reasonable and customary out-of-pocket expenses which are billed directly to the engagement such as certain telephone, overnight mail, messenger, travel, meals, accommodations and other expenses specifically related to the engagement. Further, if FTI and/or any of its employees are required to testify or provide evidence at or in connection with any judicial or administrative proceeding relating to this matter, FTI will be compensated by you at its regular hourly rates and reimbursed for reasonable allocated and direct expenses (including counsel fees) with respect thereto. We will send the Company periodic invoices (not less frequently than monthly) for services rendered and charges and disbursements incurred on the basis discussed above, and in certain circumstances, an invoice may be for estimated fees, charges and disbursements through a date certain. Each invoice constitutes a request for an interim payment against the fee to be determined at the conclusion of our Services. Upon transmittal of the invoice, we may immediately draw upon the Initial Cash on Account (as replenished from time to time) in the amount of the invoice. The Company agrees upon submission of each such invoice to promptly wire the invoice amount to us as replenishment of the Initial Cash on Account (together with any supplemental amount to which we and the Company mutually agree), without prejudice to the Company's right to advise us of any differences it may have with respect to such invoice. We have the right to apply to any outstanding invoice (including amounts billed prior to the date hereof), up to the remaining balance, if any, of the Initial Cash on Account (as may be supplemented from time to time) at any time subject to (and without prejudice to) the Company's opportunity to review our statements.
Case 8:12-bk-22808-CB
Desc
The Company agrees to promptly notify FTI if the Company or any of its subsidiaries or affiliates extends (or solicits the possible interest in receiving) an offer of employment to a principal or employee of FTI involved in this Engagement and agrees that FTI has earned and is entitled to a cash fee, upon hiring, equal to 150% of the aggregate first years annualized compensation, including any guaranteed or target bonus and equity award, to be paid to FTIs former principal or employee that the Company or any of its subsidiaries or affiliates hires at any time up to one year subsequent to the date of the final invoice rendered by FTI with respect to this Engagement. Initially, the Company will forwarded to us the amount of $500,000, which funds are to be held "on account" to be applied to our professional fees, charges and disbursements for the Engagement (the "Initial Cash on Account"). To the extent that this amount exceeds our fees, charges and disbursements upon the completion of the Engagement, we will refund any unused portion. The Company agrees to increase or supplement the Initial Cash on Account from time to time during the course of the Engagement in such amounts as the Company and we mutually shall agree are reasonably necessary to increase the Initial Cash on Account to a level that will be sufficient to fund Engagement fees, charges, and disbursements to be incurred. In a case under the Bankruptcy Code, fees and expenses may not be paid without the express prior approval of the bankruptcy court. In most cases of this size and complexity, on request of a party in interest, the bankruptcy court permits the payment of interim fees during the case. The Company agrees that, if asked to do so by us, the Company will request the bankruptcy court to establish a procedure for the payment of interim fees during the case that would permit payment of interim fees. If the bankruptcy court approves such a procedure, we will submit invoices on account against our final fee. These interim invoices will be based on such percentage as the bankruptcy court allows of our internal time charges and costs and expenses for the work performed during the relevant period and will constitute a request for an interim payment against the reasonable fee to be determined at the conclusion of our representation. In preparation for the filing of any cases under the Bankruptcy Code, we also may require an additional on account payment to supplement the Initial Cash on Account to cover fees, charges and disbursements to be incurred during the initial phase of the chapter 11 case (the "Additional Cash on Account"). We will hold the Additional Cash on Account, as we have the Initial Cash on Account. Of course, the reasonableness of the Additional Cash on Account remains subject to review by the court in any ensuing case. If any of the Company's entities or affiliates become a debtor in one or more cases under the Bankruptcy Code, some fees, charges, and disbursements (whether or not billed) incurred before the filing of bankruptcy petitions (voluntary or involuntary) might remain unpaid as of the date of the filing. The unused portion, if any, of the Initial Cash on Account and the Additional Cash on Account will be applied to any such unpaid pre-petition fees, charges and disbursements. Any requisite court permission will be obtained in advance. We will then hold any portion of the Initial Cash on Account and the Additional Cash on Account not otherwise properly applied for the payment of any such unpaid pre-filing fees, charges and disbursements (whether or not billed) as on account cash to be applied to our final invoice in any case under the Bankruptcy Code. Post-petition fees, charges and disbursements will be due and payable immediately upon entry of an order containing such court approval or at such time thereafter as instructed by the court. The Company understands that while the arrangement in this paragraph may be altered in whole or in part by the bankruptcy court, the Company shall nevertheless remain liable for payment of court approved postpetition fees and expenses. Such items are afforded administrative priority under 11 U.S.C. 503(b)(l). The Bankruptcy Code provides in pertinent part, at 11 U.S.C. 1l29(a)(9)(A), that a plan cannot be confirmed unless these priority claims are paid in full in cash on the effective date of any plan (unless the
5
Case 8:12-bk-22808-CB
Desc
holders of such claims agree to different treatment). It is agreed and understood that the unused portion, if any, of the Initial Cash on Account (as may be supplemented from time to time) and the Additional Cash on Account shall be held by us and applied against the final fee application filed and approved by the court. FTI may stop work or terminate the Agreement immediately upon the giving of written notice to the Client (i) if payments are not made in accordance with this Agreement, (ii) if the Application is not approved by the Bankruptcy Court, (iii) if the Chapter 11 case is dismissed or converted to a Chapter 7 proceeding, or (iv) if a Chapter 11 Trustee or other responsible person is appointed. If, and only if, local Bankruptcy rules or the order approving the Application so require, FTI shall file with and serve on creditors entitled to notice thereof, a statement of staffing, professional services, compensation or expenses, on a quarterly basis, or as the Bankruptcy Court or rules may direct, and creditors and other parties in interest shall have an opportunity to object thereto and request a hearing thereon. (ii) In the event that FTI is employed post-petition as a professional person pursuant to 327 of the Bankruptcy Code, Bankruptcy Court approval will generally be required to pay FTIs fees and expenses for Post-petition Services. In most cases of this size and complexity, on request of a party in interest, the bankruptcy court permits the payment of interim fees during the case. The Client agrees that in this situation it will, at the Clients expense, request the Bankruptcy Court to establish a procedure for the payment of interim fees during the case that would permit payment of interim fees. If the Bankruptcy Court approves such a procedure, we will submit invoices on account against our final fee. These interim invoices will be based on such percentage as the bankruptcy court allows of our internal time charges and costs and expenses for the work performed during the relevant period and will constitute a request for an interim payment against the reasonable fee to be determined at the conclusion of our Engagement. Client agrees that FTI is not an employee of the Client and the FTI employees and independent FTI contractors who perform the Services are not employees of the Client, and they shall not receive a W-2 from the Client for any fees earned under this engagement, and such fees are not subject to any form of withholding by the Client. The Client shall provide FTI a standard form 1099 on request for fees earned under this Engagement. Copies of Invoices shall be sent by facsimile or email as follows: To the Client at: American Suzuki Motor Corporation, Inc. 134 Santa Louisa Irvine, CA 92606 Attention: Mr. Takashi Iwatsuki With a Copy to: American Suzuki Motor Corporation, Inc. 3251 E. Imperial Highway Brea, CA 92821-6795 Attention: Accounts Payable
4.
Availability of Information
In connection with FTIs activities on the Clients behalf, the Client agrees (i) to furnish FTI with all information and data concerning the business and operations of the Client which FTI reasonably requests,
6
Case 8:12-bk-22808-CB
Desc
and (ii) to provide FTI with reasonable access to the Clients officers, directors, partners, employees, retained consultants, independent accountants, and legal counsel. FTI shall not be responsible for the truth or accuracy of materials and information received by FTI under this agreement. 5. Notices
Notices under this Agreement to the Client shall be provided as set forth in section 3. Notices to FTI shall be to: Attn: Cynthia Nelson Phone: 213-452-6026 Fax: 213-452-6099 Email: Cynthia.Nelson@fticonsulting.com Notices shall be provided by (a) fax and email, (b) hand delivery, or (c) overnight delivery. If provided by fax and email or hand delivery, they shall be deemed effective the date given. If provided by overnight delivery, they shall be deemed effective on the date of actual receipt. 6. Miscellaneous
This Agreement: represents the entire understanding of the parties hereto and supersedes any and all other prior agreements among the parties regarding the subject matter hereof; shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and assigns; may be executed by facsimile (followed by originals sent via regular mail), and in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument; and may not be waived, modified or amended unless in writing and signed by a representative of the Client and FTI. The provisions of this Agreement shall be severable. No failure to delay in exercising any right, power or privilege related hereto, or any single or partial exercise thereof, shall operate as a waiver thereof. Based on our understanding of the parties involved in this matter, we have compiled a list of interested parties (the Potentially Interested Parties) and have undertaken a limited review of our records to determine FTIs professional relationships with the Company and such Potentially Interested Parties. From the results of such review, we are not aware of any conflicts of interest or relationships that we believe would preclude us from performing the Services. As you know, however, we are a large consulting firm with numerous offices throughout the world. We are regularly engaged by new clients, which may include one or more of the Potentially Interested Parties. We will not knowingly accept an engagement that conflicts with this Engagement without the ORC Boards prior written consent.
Case 8:12-bk-22808-CB
Desc
If this letter correctly sets forth our understanding, please so acknowledge by signing below and returning a signed copy of this letter to us. Very truly yours, FTI CONSULTING, INC.
By: _ Name: M. Freddie Reiss Title: Senior Managing Director
ACCEPTED AND AGREED this 2nd day of November 2012.
On behalf of American Suzuki Motor Corporation, Inc.
By: Name: Takashi Iwatsuki Title: Chairman
Date: November 5, 2012
Case 8:12-bk-22808-CB
Desc
EXHIBIT A FTI CONSULTING, INC. STANDARD TERMS AND CONDITIONS
The following are the Standard Terms and Conditions on which we will provide the Services to you set forth within the attached letter of engagement with the Client effective as of November 5th, 2012 (the Engagement Letter). The Engagement Letter and these Standard Terms and Conditions annexed thereto (collectively, the Engagement Contract) form the entire agreement between us relating to the Services and replace and supersede any previous proposals, letters of engagement, undertakings, agreements, understandings, correspondence and other communications, whether written or oral, regarding the Services. The headings and titles in the Engagement Contract are included to make it easier to read but do not form part of the Engagement Contract. 1. 1.1 Reports and Advice Use and purpose of advice and reports Any advice given or report issued by us is provided solely for your use and benefit and only in connection with the purpose in respect of which the Services are provided. Unless required by law, you shall not provide any advice given or report issued by us to any third party, or refer to us or the Services, without our prior written consent. In no event, regardless of whether consent has been provided, shall we assume any responsibility to any third party to which any advice or report is disclosed or otherwise made available. Information and Assistance Provision of information and assistance Our performance of the Services is dependent upon you and the Company providing us with such information and assistance as we may reasonably require from time to time. Punctual and accurate information You and Company personnel shall use reasonable skill, care and attention to ensure that all information we may reasonably require is provided on a timely basis and is accurate and complete and relevant for the purpose for which it is required. You and the Company shall also notify us if you subsequently learn that the information provided is incorrect or inaccurate or otherwise should not be relied upon. No assurance on financial data While our work may include an analysis of financial and accounting data, the Services will not include an audit, compilation or review of any kind of any financial statements or components thereof. Company management will be responsible for any and all financial information they provide to us during the course of this Engagement, and we will not examine or compile or verify any such financial information. Moreover, the circumstances of the Engagement may cause our advice to be limited in certain respects based upon, among other matters, the extent of sufficient and available data and the opportunity for supporting investigations in the time period. Accordingly, as part of this Engagement, we will not express any opinion or other form of assurance on financial statements of the Company. Prospective financial information - In the event the Services involve prospective financial information, our work will not constitute an examination or compilation, or apply agreed-upon procedures, in accordance with standards established by the American Institute of Certified Public Accountants or otherwise, and we will express no assurance of any kind on such information. There will usually be differences between estimated and actual results, because events and circumstances frequently do not occur as expected, and those differences may be material. We will take no responsibility for the achievability of results or events projected or anticipated by the management of the Company.
2. 2.1
2.2
2.3
2.4
Case 8:12-bk-22808-CB
Desc
3. 3.1
Additional Services Responsibility for other parties You and the Company shall be solely responsible for the work and fees of any other party engaged by you or the Company to provide services in connection with the Engagement regardless of whether such party was introduced to you by us. Except as provided in this Engagement Contract (including the retention of certain agents and independent contractors), we shall not be responsible for providing or reviewing the advice or services of any such third party, including advice as to legal, regulatory, accounting or taxation matters. Further, we acknowledge that we are not authorized under our Engagement Contract to engage any third party to provide services or advice to you or the Company, other than our agents or independent contractors engaged to provide Services, without your or the Companys written authorization. Confidentiality Restrictions on confidential information All parties to this Engagement Contract agree that any confidential information received from the other parties shall only be used for the purposes of providing or receiving Services under this or any other contract between us. Except as provided below, no party will disclose other contracting partys confidential information to any third party without such partys consent. Confidential information shall not include information that: 4.1.1 is or becomes generally available to the public other than as a result of a breach of an obligation under this Clause 4.1; is acquired from a third party who, to the recipient partys knowledge, owes no obligation of confidence in respect of the information; or is or has been independently developed by the recipient (without the use of confidential information).
4. 4.1
4.1.2
4.1.3
4.2
Disclosing confidential information Notwithstanding Clause 1.1 or 4.1 above, all parties will be entitled to disclose confidential information to a third party to the extent that this is required by valid legal process, provided that (and without breaching any legal or regulatory requirement) where reasonably practicable not less than 2 business days notice in writing is first given to the other parties. Citation of engagement Without prejudice to Clause 4.1 and Clause 4.2 above, to the extent our engagement is or becomes known to the public, we may cite the performance of the Services to our clients and prospective clients as an indication of our experience, unless we and you specifically agree otherwise in writing. Internal quality reviews Notwithstanding the above, we may disclose any information referred to in this Clause 4 to any other FTI entity or use it for internal quality reviews; provided, that we shall cause such persons to keep such information confidential in accordance with the terms of this Engagement Contract. Maintenance of workpapers Notwithstanding the above, we may keep one archival set of our working papers from the Engagement, including working papers containing or reflecting confidential information, in accordance with our internal policies; provided, that we shall keep such materials confidential in accordance with the terms of this Engagement Contract. Termination Termination of Engagement with notice Termination of Engagement with notice This Agreement is terminable by the Client or by FTI at any time upon the giving of thirty (30) days written notice. Upon such termination by the Client (the Termination Date"), FTI shall cease work and the Client shall have no further obligation for fees and expenses of FTI arising or incurred after the Termination Date.
4.3
4.4
4.5
5. 5.1
10
Case 8:12-bk-22808-CB
Desc
a) The Client shall reimburse FTI for its out-of-pocket expenses (the "Termination Expenses") incurred in connection with commitments made by FTI prior to the Termination Date with respect to advance travel arrangements reasonably incurred, to the extent FTI is unable to obtain refunds of such expenses. FTI shall provide the Client with reasonable documentation to substantiate all Termination Expenses for which payment is requested. 5.2 Continuation of terms The terms of the Engagement that by their context are intended to be performed after termination or expiration of this Engagement Contract, including but not limited to, Clauses 3 and 4 of the Engagement letter, and Clauses 1.1, 4, 6 and 7 of the Standard Terms and Conditions, are intended to survive such termination or expiration and shall continue to bind all parties. Liability Limitation and Waiver of Jury Trial Indemnification and Insurance - Subject to any limitation post-petition required by the Bankruptcy Court, the Client agrees to indemnify and hold harmless FTI and its shareholders, directors, officers, managers, employees, contractors, agents and controlling persons (each, an Indemnified Party) from and against any losses, claims, damages or expenses, or if same was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or investigation, in each case by reason of (or arising in part out of) any event or occurrence related to this agreement or any predecessor agreement for services or the fact that any Indemnified Party is or was an agent, officer director, employee or fiduciary of the Client, or by reason of any action or inaction on the part of any Indemnified Party while serving in such capacity (an Indemnifiable Event) against expenses (including reasonable attorneys fees and disbursements), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any Indemnifiable Event. The Application shall include the assumption by the Client of FTIs right to indemnification in respect of its actions under this Agreement prior to the Petition Date. The Indemnified Party shall promptly forward to the Client all written notifications and other matter communications regarding any claim that could trigger the Clients indemnification obligations under this Section 6. If the Client so elects or is requested by an Indemnified Party, the Client will assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the reasonable fees and disbursements of such counsel. In the event, however, such Indemnified Party is advised by counsel that having common counsel would present such counsel with a conflict of interest or if the defendants in, or targets of, any such action or proceeding include both an Indemnified Party and the Client, and such Indemnified Party is advised by counsel that there may be legal defenses available to it or other Indemnified Parties that are different from or in addition to those available to the Client, or if the Client fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Indemnified Party, in either case in a timely manner, then such Indemnified Party may employ separate counsel to represent or defend it in any such action or proceeding and the Client will pay the reasonable fees and disbursements of such counsel; provided, however, that the Client will not be required to pay the fees and disbursements of more than one separate counsel (in addition to local counsel) for an Indemnified Party in any jurisdiction in any single action or proceeding. In any action or proceeding the defense of which the Client assumes, the Indemnified Party will have the right to participate in such litigation and to retain its own counsel at such Indemnified Party's own expense. The Client further agrees that the Client will not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Party or any other Indemnified Party is an actual or potential party to such claim, action, suit or proceeding) unless (i) to the extent that such settlement, compromise or consent purports directly or indirectly to cover the Indemnified Party or any other Indemnified Party, such settlement, compromise or consent includes an unconditional release of the Indemnified Party and each other Indemnified Party from all liability arising out of such claim, action, suit or proceeding, or (ii) to the extent that such settlement, compromise or consent does not purport directly or indirectly to cover the Indemnified Party or any other Indemnified Party, the Client has given the Indemnified Party reasonable prior written notice thereof and used all reasonable efforts, after consultation with the Indemnified Party, to obtain an unconditional release of the other Indemnified Parties hereunder
11
6. 6.1
Case 8:12-bk-22808-CB
Desc
from all liability arising from all liability arising out of such claim, action, suit or proceeding. The Indemnified Party shall not enter into any closing agreement or final settlement that could trigger the Clients indemnification obligations under this Section 6 without the written consent of the Client, which shall not unreasonably be withheld or delayed or conditioned. The Client will not be liable for any settlement of any action, claim, suit or proceeding affected without the Clients prior written consent, which consent shall not be unreasonably withheld or delayed or conditioned, but if settled with the consent of the Client or if there be a final judgment for the plaintiff, the Client agrees to indemnify and hold harmless the Indemnified Party from and against any loss or liability by reason of such settlement or judgment, as the case may be. 6.2 This indemnity shall not apply to any portion of any such losses, claims, damages, liabilities and expenses to the extent it is found in a final judgment by a court of competent jurisdiction to have resulted primarily from the bad faith, gross negligence, willful misconduct or violation of law of any such Indemnified Party.. The Client agrees to use commercially reasonable best efforts to include M. Freddie Reiss and any other FTI personnel who assume officer or director positions with the Client or who perform Services hereunder, FTI and its agents, employees, officers, subcontractors, directors, joint venture partners and members, as insureds under the Clients directors and officers insurance, should the Client have such insurance. In connection with this engagement Client represents to FTI that Client hereby represents that (i) it has timely remitted and will continue to timely remit to the appropriate beneficiaries all employee source deductions, payroll and other taxes, benefits deductions, and contribution to employee benefit programs, and has timely collected and remitted sales and use and other similar taxes to appropriate collecting authorities and will continue timely to do so; (ii) there is no litigation or other proceeding pending, or to knowledge of Client, threatened (nor is Client aware of facts that could give rise to such), in each case that seeks or could give rise to personal liability of officers and directors of Client; and (iii) Client has been in continuing compliance with all applicable laws and regulations concerning the discharge, treatment, storage, transportation or use of hazardous materials and is aware of no facts or circumstances that could give rise to Client responsibility or liability under such laws and regulations. Limitation of liability - You and the Company agree that no Indemnified Person shall have any liability as a result of your retention of FTI, the execution and delivery of this Engagement Contract, the provision of Services or other matters relating to or arising from this Engagement Contract, other than liabilities that shall have been determined by final non-appealable order of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of an Indemnified Person or Persons. Without limiting the generality of the foregoing, in no event shall any Indemnified Person be liable for consequential, indirect or punitive damages, damages for lost profits or opportunities or other like damages or claims of any kind. WAIVER OF JURY TRIAL TO FACILITATE JUDICIAL RESOLUTION AND SAVE TIME AND EXPENSE, YOU, THE COMPANY AND FTI IRREVOCABLY AND UNCONDITIONALLY AGREE NOT TO DEMAND A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE SERVICES OR ANY SUCH OTHER MATTER. Governing Law and Jurisdiction The Engagement Contract shall be governed by and interpreted in accordance with the laws of the State of California, without giving effect to the choice of law provisions thereof. The Bankruptcy Court having jurisdiction over the Clients Bankruptcy case shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the Engagement Contract and any matter arising from it. The parties submit to the jurisdiction of such Courts and irrevocably waive any right they may have to object to any action being brought in these Courts, to claim that the action has been brought in an inconvenient forum or to claim that those Courts do not have jurisdiction.
6.3
6.4
7.
12
Case 8:12-bk-22808-CB
Desc
Confirmation of Standard Terms and Conditions Subject to the terms and conditions of the Engagement Letter, we agree that FTI Consulting, Inc. is engaged upon the terms set forth in these Standard Terms and Conditions as outlined above.
On behalf of [American Suzuki Motor Corporation, Inc.]
By: Name: Takashi Iwatsuki Title: Chairman
Date: November 5, 2012
13
Case 8:12-bk-22808-CB
Desc
EXHIBIT B INITIAL SCHEDULE OF ADDITIONAL PERSONNEL

Staff Cynthia Nelson Dominic Santos Walt Brown James Chu Travis Kanafani Alex Khansa Level Senior Managing Director Managing Director Managing Director Director Director Consultant Hourly Rate $895 $730 $730 $595 $560 $315
14
Case 8:12-bk-22808-CB
Desc
SCHEDULE 1 FTI Consulting, Inc. has performed a relationship search of its database against the following entities: The Debtor American Suzuki Motor Corporation Affiliates to Debtor Suzuki Motor Corporation Suzuki Manufacturing Of America Corporation Suzuki Canada Inc. GM Korea Company Other Trade Names in the Last 8 Years U.S. Suzuki Motor Corporation Suzuki International Inc. Suzuki America Suzuki of America Automotive Corporation Current Officers and Directors Takashi Iwatsuki Seiichi Maruyama Toru Muraki Michael Ozawa R. Todd Neilson Akira Asai Mark Eastman Koichi Kato Hisashi Takayanagi Nancy Tayui Yoshihide Haruta Chris White Yuichi Suzuki Jimmy Scarboro Pat Murphy Lee Raines John Rebarchak Joe Taylor Larry Vandiver Toru Muraki Rod Lopusnak Kevin Conroy Ron Myers Dan Williams Takashi Futamura Steve Bortolamedi
Case 8:12-bk-22808-CB
Desc
Dirk Gould Dennis Blough Tom Todd John Weiden David Goldiner Kevin Burns Eddie Rayyan Chris Coons Ken Bush Jerry Hashimura Cathi Black Equity Ownership >5% Suzuki Motor Corporation Auto Dealers Dorsey Motor Sales, Inc. dba Victory Imports Classic Suzuki, LLC dba Classic Suzuki of Birmingham Bentley Auto, Inc. dba Bentley Auto, Inc. Long-Lewis Ford of the Shoals, Inc. dba Long-Lewis Suzuki Bill Luke Suzuki, L.L.C. dba Bill Luke Suzuki, LLC Shortline Automotive, Inc. dba Shortline Suzuki Denver Isuzu Suzuki, LLC dba Denver Isuzu Suzuki, LLC McCloskey Motors, Inc. dba McCloskey Suzuki Medved Suzuki North, Inc. The Bill Berry Motor Company dba City Auto Plaza Dellenbach Chevrolet, Inc. dba Dellenbach Motors Stephen Suzuki, Inc. dba Stephen Suzuki, Inc. Harte Nissan, Inc. dba Harte Suzuki Napoli Indoor Auto Outlet, LLC dba Napoli Suzuki County Line Carriage, Inc. dba County Line Suzuki Hertrich Investments, LTD dba Hertrich's Capitol Suzuki Crown Auto Dealerships, Inc. dba Crown Suzuki South Motors Suzuki, Inc. dba South Motors Suzuki, Inc. Bill Seidle Suzuki, Inc. dba Bill Seidle Suzuki Inc. Fitzgerald Motors, Inc. dba Fitzgerald's Countryside Suzuki Gator Chry/Ply, Inc. dba Gator Suzuki William Lehman Isuzu, Inc. dba William Lehman Suzuki Morse Operations Inc. dba Ed Morse Suzuki Orlando Automotive LLC dba Fountain Suzuki Diamond Motors of Daytona, L.L.C. dba Diamond Suzuki Team Vaden Imports, Inc. dba Vaden Suzuki Southtowne Motors, Inc. dba Southtowne Suzuki The Momentum Group, Inc. dba Gwinnett Suzuki Bennett Suzuki, Inc. dba Bennett Suzuki Dennis Dillon Auto Park & Truck Center, Inc. dba Dennis Dillon Suzuki
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Bob Ridings LM Jeep Inc. dba Bob Ridings Suzuki of Dec Sutton Ford, Inc. dba Sutton Suzuki Jack Phelan Dodge, LLC dba Jack Phelan Suzuki Ray Chevrolet, Inc. dba Ray Suzuki MJB Saturn, LLC dba Suzuki of Glenview Naperville Automotive, Inc. dba Experience Suzuki of North Aurora Al Piemonte Suzuki, Inc. dba Al Piemonte Suzuki, Inc. Bloomington Ford Inc. dba University Suzuki Richardson Motors, Inc. dba Richardson Suzuki Rohr-Indy Motors, Inc. dba Indy Motorwerks Five Star Motors of Lafayette, Inc. dba Bob Rohrman Carco, Inc. dba The Car Company Suzuki Lochmandy Auto Group, LLC dba Lochmandy Suzuki of Elkhart Ray Skillman Westside Imports Inc. dba Ray Skillman Suzuki West Des Moines Chrysler-Plymouth, Inc. dba Suzuki of Des Moines Jensen Imports, Inc. dba Jensen Suzuki Junge Lincoln-Mercury, Inc. dba Junge Suzuki JCMC Inc. dba Jim Clark Suzuki John Hoffer Chrysler Jeep, Inc. dba John Hoffer Suzuki Suzuki of Wichita East, LLC dba Suzuki of Wichita East, LLC T&R Associates, LLC dba Pride Suzuki of Olathe Select Auto Sales Leasing, Inc. dba Select Suzuki Sam Swope Auto Group LLC dba Sam Swope Suzuki U.S. Car, L.L.C. dba Car Town Suzuki, USA Royal Suzuki, Inc. dba Royal Suzuki, Inc. Rainbow Automotive, LLC dba Rainbow Suzuki Bryan Imports, Inc. dba Bryan Suzuki Blakey Auto Plex, LLC dba Blakey Auto Plex Suzuki Sterling Automotive Group, Inc. dba Sterling Suzuki Entrust, Inc. dba Norman-David Suzuki Van Syckle Lincoln-Mercury dba Van Syckle Suzuki Precision Motors, Inc. dba Paul Blouin Suzuki Wheaton Motor City, Inc. dba Fitzgerald's Wheaton Suzuki Fitzgerald Auto Mall, Inc. dba Fitzgerald Suzuki Adams Auto Company , LLC dba Adams Suzuki Sharrett, Inc. dba Sharrett Suzuki Gervais Imports, Inc. dba Gervais Suzuki of Lowell Bedard Bros Auto Sales, Inc. dba Bedard Bros Suzuki LaFontaine Motors, Inc. dba LaFontaine Suzuki K&M Northfield Dodge, Inc. dba K&M Suzuki M&M Imports, Inc. dba M&M Suzuki A&W Motors, Inc. dba Suzuki of Moorhead Kuehn Motor Co Inc. dba Kuehn Suzuki Saturn of St. Paul, Inc. dba Suzuki of White Bear Lake Cartiva of Burnsville, Inc. dba Apple Suzuki of Shakopee Auto City Suzuki of Olive Branch, LLC dba Auto City Suzuki of Olive Branch
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
St. Charles Nissan, Inc. dba St. Charles Suzuki G.A. Imports Inc. dba Webster Groves Suzuki Northtowne of Libery, Inc. dba Northtowne Suzuki JF Enterprises, LLC dba Jeremy Franklin's Suzuki of Kansas City Thomas & Hunter Enterprises Incorporated dbs Suzuki of Springfield TNT Automotive Sales, Inc. dba TNT Suzuki Archer-Perdue, Inc. dba Archer Perdue Suzuki Jim Marsh American Corporation, dba Jim Marsh Suzuki Port City Nissan, Inc. dba Port City Suzuki Autex, Inc. dba Autex Suzuki BJT Holding LLC dba Nashua Suzuki White Mountain Carraige Company LLC dba Suzuki of Manchester Foulke Management Corp. dba Cherry Hill Suzuki Wayne Motors, Inc. dba Suzuki of Wayne Green Brook Pontiac-GMC dba Suzuki of Green Brook Glassboro Imports, LLC dba Matt Blatt Glassboro Suzuki Bergenfield Suzuki, LLC dba Gerdenfield Suzuki Maurice Schwartz & Sons, Inc. dba Schwartz Suzuki Melloy Super Center, Inc dba Melloy Suzuki Fuccillo Imports, Inc. dba Fuccillo Suzuki Marketplace Chrysler Plymouth, Inc dba Marketplace Suzuki Suzuki USA LLC dba Suzuki 112 USA LLC Simmons/Rockwell Autoplaza, Inc. dba Simmons/Rockwell Mit-Suz Wayco Wholesale Cars, Inc. dba Ki-Po Motor Suzuki Lockport Della North, Inc. dba Della Suzuki Victory Auto Group LLC dba Bronx Suzuki Victory Auto Group LLC dba Victory Suzuki Homewood Motorcycles, Inc. dba Big #1 Motorsports Joe Belmont Auto Expo Enterprises, Inc dba Great Neck Suzuki Advantage Suzuki, LLC dba Advantage Suzuki Matthews on the Parkway, Inc. dba Matthews Suzuki Fogg's Auto Sales, Inc. dba Fogg's Automotive & Suzuki Planet Automotive, Inc. dba KG Suzuki Drivers Village, Inc. dba Burdick Suzuki Bright Bay Suzuki, Inc. dba Bright Bay Suzuki, Inc. Car Pros Automotive Group, Inc. dba Car Pros Suzuki J.O. Stevenson, Inc. dba Stevenson Suzuki Leith of Fayetteville, Inc dba Leith Suzuki Prestige Motors of Asheville, Inc. dba Prestige Suzuki Triangle Motor Sales Inc dba Mark Jacobson Suzuki Westcott Automotive, Inc dba Westcott Suzuki Parkway Ford, Inc. dba Parkway Suzuki Celebrity Suzuki of Rock Hill, LLC dba Planet Suzuki Capital Ford, Inc dba Capital Suzuki of Raleigh The Symposium Group, LLC dba Stevenson Suzuki of Wilmington
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
King Suzuki of Hickory, LLC dba King Suzuki of Hickory, LLC Ganley, Inc. dba Ganley Suzuki Halpert Subaru, Inc. dba Halpert Suzuki Ganley East, Inc. dba Ganley Suzuki East Park Auto South, Inc. dba Parkway Suzuki Herrnstein Hyundai, Inc. dba Herrnstein Suzuki Busam Fairfield, LLC dba Busam Suzuki Bobb Automotive, Inc. dba Bobb Suzuki Ferguson Advantage Imports Isuzu-Subaru-Kia-Suzuki, LLC dba Ferguson Advantage Imports Isuzu-Subaru-Kia-Suzuki LLC BRSI, LLC dba Big Red Suzuki Jim Smolich Motors, Inc dba Jim Smolich Motors, Inc Butler Imports, Inc. dba Butler Suzuki Auto Truck Source, LLC dba Gladstone Suzuki Wright Suzuki, Inc. dba Wright Suzuki Joseph Chermak, Inc. dba Chermaks Suzuki McQuillen Olds-Pontiac-GMC Truck, Inc. dba McQuillen Suzuki De Simone, Inc. dba De Simone Suzuki McCafferty Hyundai Sales, Inc. dba McCafferty Suzuki Jerry M Goldstein, Inc. dba Five Star Suzuki Automobiles Van Campen Motors, Inc. dba Van Campen Motors, Inc. Diehl Motor Co., Inc. dba Diehl Suzuki York Auto Group, Inc. dba Suzuki of York Five Star/State College, Inc. dba Five Star Suzuki Jeff D'Ambrosio Suzuki of Downingtown, LP dba Jeff D'Ambrosio Suzuki of Downingtown Courtesy Oldsmobile, Inc. dba Courtesy Suzuki Milford Suzuki Sales, Inc. dba Milford Suzuki Hansen Auto, Inc. dba Ellis Suzuki Pottsville Ford, Inc. dba Sands Suzuki of Pottsville Tri Star Ford, Inc. Tri Star Ford-Mercury, Inc. Airport Automobiles, Inc. dba Moon Township Suzuki Ray Price Ford, Inc. dba Ray Price Suzuki Brown-Daub Suzuki, Inc. dba Brown-Daub Suzuki Jacamo, Inc. dba Auto Express Suzuki Ken Pollock Auto Group, Inc. Ken Pollock Chevrolet, Inc. Sutliff Saturn, Inc. dba Sutliff Suzuki East Wright Pontiac of Carnegie, Inc. dba Wright of Carnegie G.T. Sloan incorporated dba Five Star Suzuki Altoona The Car Store, Inc. dba Jimmy's Suzuki Strom Slaman Suzuki, Inc. Dick Dyer Alternative Transportation, LLC dba Dick Dyer Suzuki Progressive Investment Concepts, Inc. dba The Suzuki Superstore Soo Import, Inc. dba Graham Automotive Rapid Motors, LLC dba Rapid Motors Suzuki
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Bill Gatton Imports, Inc. dba Bill Gatton Suzuki Mathews Nissan, Inc. dba Mathews Suzuki First Team Imports, Inc. dba Wallace Suzuki of Johnson Fleet and Rental Liquidators, Inc. dba Suzuki of Nashville DeMontrond Buick Company dba DeMontrond Automotive Group, Inc. Payne Brownsville, Inc.dba Payne Suzuki Auto's Etc. Inc. dba Automax Suzuki Payne Imports LLP dba Payne Mission Mitsubishi VW Suzuki Brink Suzuki, Ltd. Dba Brink Suzuki, Ltd. Cutrubus Motors, Inc. dba Cutrubus Suzuki of Layton West Valley Auto, LLC dba West Valley Suzuki KeTech LLC dba Riverton Suzuki Doug Smith Chrysler Jeep, Inc. dba Doug Smith Suzuki The L & T Auto Group, Inc. dba Quality Motors Suzuki Burlington Suzuki, Inc. dba Burlington Suzuki Mike Duman Auto Sales, Inc. dba Mike Duman Suzuki A.D.D.D Group, Inc. dba Duncan Suzuki Hart Motor Company, Inc. dba Hart Motor Company, Inc. Joint Enterprises, Inc. dba Pembroke Suzuki Little Joe's Autos, L.L.C. dba Little Joe's Suzuki Brown's Richmond Motors, Inc. dba Brown's Suzuki Continental Cars, Inc. dba Aubun Valley Cascade Chrysler Inc. dba Karmart Suzuki Dwayne Lanes Chyrsler Jeep, Inc. dba Dwayne Lanes Everett Suzuki Peninsula Subura, Inc. dba Peninsula Suzukia Leskovar Lincoln-Mercury, Inc. dba Leskovar Suzuki Vancouver Ford, Inc. dba Vancouver Suzuki Wenatchee Valley's Truck & Auto Outler, Incs. Dba Wenatchee Suzuki Fourth Letter T, LLC dba Hallmark Suzuki Brooks Biddle Automotive, Inc. dba Brooks Biddle Suzuki, Inc. Matheny Motor Truck Company dba Matheny Suzuki Bilco, Inc. dba Pantili Suzuki Charleston Suzuki LLC dba Charleston Suzuki Lewis One Plaza Center Corporation dba Lewis Suzuki Auto Land Select Cars, Inc. dba Auto Land Suzuki Chilson, Inc. dba Chilson Suzuki Runde Chevrolet, Inc. dba Runde Suzuki Thornhill Superstore, Inc. dba Thornhill Suzuki Bob Tyler Suzuki, Inc. dba Bob Tyler Suzuki Coconut Creek Automotive, LLC dba Coconut Creek Suzuki King Motor Company of South Florida dba King Suzuki Bay Family of Fine Cars, LLC dba Bay Suzuki Bill Seidle Suzuki of Davie, Inc. dba Bill Seidle Suzuki of Davie City Automotive Suzuki, Inc. dba City Suzuki FBC Automotive, Ltd. dba Sarasota Suzuki Germain of Bonita III, LLC d/b/a Germain Suzuki
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Lithia MMF, Inc. dba Lithia Suzuki of Fresno Tom's Truck Center-South County, Inc. dba Suzuki Depot Kingwood Marketing, Inc. dba Kingwood Suzuki Hopper Motorplex, Inc. dba Suzuki Cars of McKinney Chacon Autos, Ltd. dba Chacon Suzuki Park I-10 Motors, Inc. dba World Car Suzuki Southwest Autoplex, LLC dba Southwest Suzuki Chacon Autos, Ltd. dba Chacon Suzuki Dallas Cooley Suzuki, LLC dba Clay Cooley Suzuki Motorway Auto 1, LP dba Viva Suzuki L and 4C, LLC dba Clay Cooley Suzuki Baffin Financial, Ltd. dba Taggart Suzuki Manuel Auto Group, Ltd. dba Manuel Suzuki Vallejo CJD, LLC dba Momentum Suzuki Ball Automotive Group dba Ball Suzuki Lloyd A. Wise, Corp. dba Suzuki of San Leandro Riso Motor Car Company Mirage Motors Inc. dba Luzzi Suzuki Peoples Chrysler Jeep dba Peoples Chrysler Jeep Gem Wiley Ford, LLC dba Colorado River Ford Lincoln Mercury Seidner-Miller Automotive, Inc. dba Glendora Suzuki (fka Foothill Suzuki) Romain Buick Inc. dba Romain Suzuki Casa de Cadillac dba Van Nuys Suzuki Wagner Waldrop Motors, Inc. dba East Carolina Suzuki Service Anderson Suzuki of Lake Havasu City, LLC dba Anderson Suzuki JD E-Z Auto Sales, L.L.C. dba Johnny's Suzuki Service Elk Grove Auto Group dba Elk Grove Suzuki Strieter Motor Company dba Strieter Motor Company Brooklyn Park Automotive, Inc. dba Morries Brooklyn Park Suzuki Paul Benton Motors, LLC Gold Star Motors, Inc. dba Gold Star Suzuki Mastro Bros. Auto Group, LLC dba Suzuki of Central Florida Auddie Brown Auto Sales of Florence, Inc. dba Auddie Brown Suzuki Wolf's Interstate Leasing & Sales, LLC dba Wolf's Bozeman Suzuki Alton E. Blakley Co., Inc. dba Alton Blakley Suzuki Dale Jarrett Ford, Inc. dba Dale Jarrett Suzuki Evans Suzuki, Inc. dba Evans Suzuki Kirby Olsmobile dba Suzuki of Ventura Autopro Remarketing, Inc. dba Autopro Suzuki Randy Roper Motors LLC dba Roper Suzuki Warta Buick, Inc dba Suzuki of Salina Marvin K. Brown Auto Center, Inc. dba Marvin K. Brown Suzuki Autoworld Big Stone Gap, Inc. dba Autoworld Big Stone Gap, Inc. Sisbarro's Auto World, Inc. dba Affordable Suzuki Cornhusker Auto Center, Inc. dba Cornhusker Suzuki Carcorp, Inc. dba Dennis Suzuki
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Eide Motors, Inc. dba Eide Suzuki Automotive Warranty & Service Center, LLC dba Automotive Warranty & Service Center, LLC Hassle Free Services, Inc. dba Vince Williams Suzuki Arredondo Motors, Inc. dba Family Motors Suzuki Golden Circle Suzuki LLC dba Golden Circle Suzuki Arbogast Imports, Inc. dba Arbogast Suzuki Cabral Western Motors, Inc. dba Cabral Suzuki Capitol Del Grande, Inc. dba Capitol Suzuki Pugmire Suzuki, LLC dba Pugmire Suzuki Suzuki of NWA, Inc. Wenco Auto Group, Inc. dba Suzuki of Memphis Bowditch Ford, LLC dba Bowditch Suzuki Service Glassboro Imports, LLC dba Matt Blatt Glassboro Suzuki and dba Matt Blatt Glassboro Suzuki EHT Service Riverside Auto Holdings, Inc. dba Singh Suzuki Service San Diego Auto Liquidators, Inc. dba Suzuki of Escondido Parts and Service MDS, Inc. dba Mike Smith Suzuki Service Wakefield Automotive, Inc. dba Wakefield Suzuki Service and Parts Bob Wade Lincoln-Mercury, Inc. dba Bob Wade Suzuki Parts and Service Center Continental Motor Co., Inc. dba Continental Suzuki Service Northsound Auto Group, LLC dba Dwayne Lane's Suzuki Professional Service Providers to the Debtors BAKER BOTTS LLP BERKOWITZ OLIVER WILLIAMS NELSON MULLINS RILEY & SCARBOR PRICEWATERHOUSECOOPERS WINSTON & STRAWN LLP JULIA TACHIKAWA ASHE, RAFUSE & HILL, LLP WILKES LAW FIRM, P.A. MARSHALL, DENNEHEY WARNER, COL DINSMORE & SHOHL LLP POLSINELLI SHUGHART PC SUTHERLAND, ASBILL & BRENNAN, C2 LEGAL Kirkland & Ellis STRASBURGER & PRICE, LLP RUGGERELLO LAW GROUP L.L.P. KPMG, LLP BAKER & HOSTETLER LLP BUCHANAN, INGERSOLL & ROONEY, O'HAGAN SPENCER, LLC HISCOCK & BARCLAY LLP BRACEWELL & GIULIANI LLP HORN AYLWARD & BANDY, LLC
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
O'HAGAN SPENCER LLP DANNER & MARTYN, LLP BROMAGEN & RATHET, P.A. CLAPP PETERSON TIEMESSEN THORS STRADLING YOCCA CARLSON & RAUT LAW OFFICES OF MARK WRAY PINKERTON CONSULTING & INVESTI LOZA & LOZA LLP LIGHTFOOT, FRANKLIN & WHITE HOTTA LIESENBERG SAITO & CO JACOBSON HOLMAN PLLC WOOD & JENKINS, PLLC KRAVIT, HOVEL, KRAWCZYK S.C. BECHERER, KANNETT & SCHWEITZER MCGUIREWOODS Debtors Current and Former Depository Institutions where Debtors Maintain Accounts Bank of the West Mizuho Shizuoka Bank, Ltd. Sumitomo Mitsui Bank Union Bank of California Bank of America Union Bank of California Top Unsecured Creditors (50 largest unpaid as of 10-16-2012) YOSHIMURA RACING LLC ADVANSTAR COMMUNICATIONS INC BAYLOR GROUP, INC. CREATIVE WORKS ROTH RETAIL PROPERTY HOLDING, LLC SYSTEM SIMULATIONS, INC. WARRANTY SOLUTIONS MANAGEMENT CORPORATIO ENGINE TREND RIVERSIDE INC. SPX SERVICE SOLUTIONS NATIONAL STANDARD PARTS ASSOCIATES, INC. MATRIX CONCEPTS, LLC NMMA FALCON ENTERPRISES SAMEDAY CYLINDER SERVICE AVAYA INC MAIN COMPANY FLEET CAR CARRIERS FARIA MARINE INSTRUMENTS SPECTRUM LUBRICANTS CORPORATION RAYMOND TODD NEILSON
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
AMREP INC COURTESY OLDSMOBILE INC IPSOS LOYALTY, INC. SOPUS PRODUCTS ICL INC OPTISOURCE TECHNOLOGIES INC SOUTHLAND INDUSTRIES UPS FREIGHT JMC PROMOTIONS AMPORTS GT SLOAN INCORPORATED SEVEN SPRINGS SALES, LLC BARRETT MOVING AND STORAGE AKAMAI TECHNOLOGIES INC LONG LEWIS FRD SHOALS INC L AND 4C LLC ADVERTISING CHECKING BUREAU, INC LYNDEN TRANSPORT INC. HERSHEY PAPER COMPANY ADVANTAGE SUZUKI LLC THE PLASTICS GROUP, INC. ACTION EXPEDITING, INC ATC DRIVETRAIN, LLC. SIMMONS/ROCKWELL AUTO INC BILCO INC LEWIS ONE PLAZA CTR CORP SOUTHEASTERN FRT LINES Significant Utilities AT&T CITY OF BREA CITY OF ORANGE CITY OF WIXOM COBB COUNTY WATER SYSTEM COBB ELECTRIC MEMBERSHIP CORP CONSUMERS ENERGY DTE ENERGY GAS SOUTH LLC MERRILL & ASSOCIATES INC PENNSYLVANIA-AMERICAN WATER CO PPL ELECTRIC UTILITIES SOUTHERN CALIFORNIA EDISON CO. THE GAS COMPANY UGI UTILITIES, INC UPPER ALLEN TOWNSHIP YORBA LINDA WATER DISTRICT
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
300 Major Vendors (based on last 12 months spend) SUZUKI MANUFACTURING OF AMERICA CORPORATION SILTANEN & PARTNERS ADVERTISING SHEFFIELD FINANCIAL, LLC ANSIRA CARMICHAEL INTERNATIONAL SERVICE GE COMMERCIAL DISTRIBUTION FINANCE AIMIA GE MONEY BANK AMERICAN SUZUKI FINANCIAL SERVICES ECKHAUS FLEET, LLC GM KOREA COMPANY CORNERSTONE USA QUESTUS, INC. UNITED PARCEL SERVICE MARSH USA, INC SPARK COMMUNICATIONS GENERAL MOTORS LLC FLEET CAR CARRIERS YOSHIMURA RACING LLC FEDEX FREIGHT WEST ADVANTAGE SUZUKI LLC SCHWAB RETIREMENT PLAN SERVICES NUCLEUS WORLDWIDE LLC BANK OF AMERICA UPS FREIGHT SUZUKI INTERNATIONAL EUROPE GMBH AVIS BUDGET CAR RENTAL, LLC J B HUNT TRANSPORT AVIS BUDGET GROUP, INC. TOTAL TRANSPORTATION SERVICE GARMIN BERKOWITZ OLIVER WILLIAMS COURTESY OLDSMOBILE INC BAYLOR GROUP, INC. ALLY Bank ATC DRIVETRAIN, LLC. JACAMO INC SIMMONS/ROCKWELL AUTO INC BURLINGTON NORTHERN RR CO BUTLER, WOOTEN & FRYHOFER, LLP IN TRUST BAKER BOTTS LLP RAY CHEVROLET INC NELSON MULLINS RILEY & SCARBOROUGH, LLP SOPUS PRODUCTS
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
AMPORTS BARRETT MOVING AND STORAGE DENVER ISUZU SUZUKI LLC CALIFORNIA AIR POLLUTION CONTROL FUND SYSTEM SIMULATIONS, INC. SOUTHEASTERN FRT LINES SUN LIFE ASSURANCE COMPANY OF CANADA DELLA NORTH INC NAVICO, INC. ENGINE TREND RIVERSIDE INC. NISSAN NORTH AMERICA, INC. CAPITAL FORD INC MCCLOSKEY MOTORS, INC. MARKETPLACE C/P, INC FIVE STAR/ST. COLLEGE INC WAGGONERS TRUCKING THE L & T AUTO GROUP INC CREATIVE WORKS SUMMIT INDUSTRIES, INC FTI CONSULTING, INC JF ENTERPRISES LLC WALLENIUS WILHELMSEN LOGISTICS VEHICLE IMPARTIAL SERVICES GROUP LLC MATRIX CONSULTANTS PRICEWATERHOUSECOOPERS J D POWER & ASSOCIATES SEAN P. CARR, AND HIS ATTORNEYS, THE NEW MATHEWS NISSAN INC MERRILL & ASSOCIATES INC HANSEN AUTO INC ROYAL SUZUKI INC IRWIN BROH & ASSOCIATES INC SAFETY ENGINEERING ASSOC INC FALCON ENTERPRISES MERIDIAN IT INC BROOKVALE INTERNATIONAL SPECTRUM LUBRICANTS CORPORATION U S XPRESS INC. MCQUILLEN OL-PT-GMC,INC THORNHILL SUPERSTORE INC WARN INDUSTRIES INC. U.S. BANK NATIONAL ASSOCIATION TOYOTA TSUSHO CORP NAGOYA HEAD OFFICE US BANK DOWCO INC VICTORY AUTO GROUP LLC
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
SPX SERVICE SOLUTIONS PRECISION MOTORS INC A DUIE PYLE INC COCONUT CREEK AUTOMTV LLC ACTION EXPEDITING, INC TRIANGLE MTR SLS INC WINSTON & STRAWN LLP K & R TRANSPORTATION, LLC MOTORCYCLE INDUSTRY COUNCIL WRIGHT SUZUKI INC PNC BANK THE DREXEL GROUP, INC PACIFIC VEHICLE PROCESSORS ORANGE COUNTY TAX COLLECTOR MEDVED SUZUKI NORTH INC A & W MOTORS INC SUZUKI 112 USA LLC NATIONAL CYCLE INC SMCI PASHA GROUP LOGISTICS SERVICES AIR CONTACT TRANSPORT INC BUSHWACKER ABBOTT STAFFING GROUP, INC. JP MORGAN CHASE O E CONNECTION LLC MJB SATURN LLC BOWMAN AND BROOKE WACHOVIA MANAGEMENT CORPORATION STATE BOARD OF EQUALIZATION AUTO WAREHOUSING CO LIGHTFOOT, FRANKLIN & WHITE SAMEDAY CYLINDER SERVICE LEITH OF FAYETTEVILLE INC FORD MOTOR CREDIT WEST VALLEY AUTO LLC ADVANSTAR COMMUNICATIONS INC RANDSTAD STAFFING SERVICES INC BRETT METCALFE SEGAL MCCAMBRIDGE SINGER & MAHONEY, LTD. CDW COMPUTER CENTERS, INC ASHE, RAFUSE & HILL, LLP PRECISION PROPELLER INDUSTRIES, INC WAYNE MOTORS, INC. URBAN SCIENCE APPLICATIONS, INC SPECIALTY TRANSPORT, INC. CASSENS TRANSPORT COMPANY
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
DIGITAL MOTORWORKS, INC BILL SEIDLE SUZUKI INC OAK HARBOR FRT LINES, INC SOUTHERN CALIFORNIA EDISON CO. JAY AUTOMOTIVE GROUP, INC. AND ALLY BANK FARIA MARINE INSTRUMENTS ORACLE AMERICA, INC. EMKAY INC SELLAND AUTO TRANSPORT DIAMOND MTRS OF DYTNA LLC WELLS FARGO WRIGHT PONT CARNEGIE INC INSIGHT INVESTMENTS, LLC HERSHEY PAPER COMPANY RICHARDSON MOTORS INC. AWTEC USA LYNDEN TRANSPORT INC. BEEKMAN MARKETING GROUP ORLANDO WORLD CENTER MARRIOTT CITIZEN PAINE LLC CUSTOM ASSEMBLY INC FOULKE MANAGEMENT CORP BROCKMAN AUTOMOTIVE INC DOUG SMITH CHRYS JEEP INC DAYTON FREIGHT LINES, INC. ORANGE COUNTY CONTAINER RYAN DUNGEY CALIF CARTAGE COMPANY J.B. BOSTICK CO., INC SPECIALTY VEHICLE INSTITUTE OF AMERICA, SHIPPERS WAREHOUSE OF GEORGIA RESARE MARKETING DBA SHOW MAX MARKETING RAINBOW AUTO OF HAMMOND MILLER ZELL, INC DEPENDABLE AUTO SHIPPERS, INC HORIBA INSTRUMENTS INC WHEATON MOTOR CITY INC PASONA N A, INC. TEAM VADEN IMPORTS INC MILFORD SUZUKI SALES INC COLORADO SUZUKI AUTO ADV. ASSOC. JMC PROMOTIONS AMREP INC WAYCO WHOLESALE CARS INC SAM SWOPE AUTO GROUP LLC RC RACING LLC
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
VIAM MANUFACTURING, INC. ASSOCIATION OF GLOBAL AUTOMAKERS, INC. FELD MOTOR SPORTS, INC. WATERS & KRAUS, LLP AS TRUSTEE FOR LANDSBERG HOPE VALLEY INDUSTRIES INC AVAYA FINANCIAL SERVICES RAINBOW AUTOMOTIVE LLC TRI STAR FORD INC GATOR CHRY/PLY, INC. ALFRED MCKINNEY CONTRACTOR NICHMEDIA EXPONENT FAILURE ANALYSIS ASSOCIATES D & D SERVICES EGR, INC CROSS COUNTRY MOTOR CLUB INC FOGGS AUTO SALES INC ALLEN DISTRIBUTION TCP HAYASHI TELEMPU NORTH AMERICA MARITZ TRAVEL COMPANY FOURTH LETTER T LLC TOTEM OCEAN TRAILER EXPRESS INC NATIONAL POWERSPORT AUCTIONS UNITED SIGN SYSTEMS C.A.R. TRANSPORT INC B33 CONSULTING INC TEKSYSTEMS INC US SUZUKI LLC MAIN COMPANY SYSTEM 7, INC OCEAN REEF CLUB SADDLEMEN ARCHER-PERDUE INC JEFF D'AMBROSIO SUZ LLC WILKES LAW FIRM, P.A. KENWOOD USA CORPORATION AVAYA INC SHORTLINE AUTOMOTIVE INC DONALD BAKER, THE ESTATE OF DONNA BAKER, FRANCHISE TAX BOARD SIR SPEEDY PRINTING NMMA BEIRNE, MAYNARD & PARSONS FEDERAL EXPRESS CORP MOTIVACTION
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
RUMBERGER, KIRK AND CALDWELL, P.A. FIRST TEAM IMPORTS INC HONDA FINANCIAL SERVICES MEREDITH CORPORATION NORTH AMERICAN WAREHOUSING COMPANY BOBB AUTOMOTIVE INC DINSMORE & SHOHL LLP ADVERTISING CHECKING BUREAU, INC CORNELL & GOLLUB COUNTY LINE CARRIAGE INC AKAMAI TECHNOLOGIES INC BECHERER, KANNETT & SCHWEITZER PALMER LEASING GROUP (PACLEASE) ROI SNAP-ON BUSINESS SOLUTIONS, INC DE SIMONE, INC. MOTORCYCLE SAFETY FOUNDATION INTERNAL REVENUE SERVICE FUCCILLO IMPORTS INC R L POLK & COMPANY MEDVED SUZUKI SOUTH INC MELLOY SUPER CENTER INC GEORGIA DEPT OF REVENUE ROHR LAW MOTORS INC J.O.STEVENSON, INC. AMP RESEARCH RUSS SHORKEY PARK AUTO SOUTH INC LAURA C FELFEL MARSHALL, DENNEHEY WARNER, COLEMAN HERRNSTEIN HYUNDAI INC STATE OF WASHINGTON DEPARTMENT OF REVENU SUZUKI CANADA INC. COBB COUNTY TAX COMMISSIONER DEPARTMENT OF MOTOR VEHICLES POLSINELLI SHUGHART PC PARKER HANNIFIN CORP TEAM HAMMER INC SEXTANT, LLC YORK AUTO GROUP INC CAR PROS AUTOMTV GRP INC SOUTHLAND INDUSTRIES BOB RIDINGS LM JEEP INC SELECT AUTO SLS LSNG INC JASON R FELKER SHELLY D. HOWERTON AND JAMES R. HOWERTON
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
THE M0MENTUM GROUP INC MCCAFFERTY HYI SLS, INC MATTHEWS ON THE PKWY INC BRIAN LOGAN MOULTON, BELLINGHAM LONGO & MATHER BBVA COMPASS PARTNERS CONSULTING SERVICES, INC. SUN TRUST BANK JOSEPH CHERMAK, INC. REYNALDO AND MARY GARCIA IN THE TRUST OF SUZUKI AUSTRALIA PTY LTD DUPLASS, ZWAIN, BOURGEOIS, MORTON, WARRANTY SOLUTIONS AUTO EXPO ENT INC POLYTEC FOHA SOVEREIGN BANK BLACK HORSE CARRIERS, INC. DENNIS ZERBE, TREASURER MORSE OPERATIONS INC BILL GATTON IMPORTS INC POTTSVILLE FORD INC LITIGATION RESEARCH TECHNOLOGIES COBB ELECTRIC MEMBERSHIP CORP NAPOLI INDR AUTO OTLT LLC Beneficiaries and Issuers of Letters of Credit Union Bank Bank of America Avalon Risk Management Argonaut Insurance Common Carriers and Warehousemen to the Debtors BNSF C.A.R. Transport Cassens Auto Transport Dependable Auto Shippers Fleet Car Carriers Pasha Distribution Services Reliable Auto Carriers Select 1 Transport Selland Auto Transport The Waggoners Trucking Totem Ocean Trailer Express Wallenius Wilhelmsen Lines FedEx Parcel FedEx Freight - West
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
FedEx Freight - East UPS Parcel UPS Freight Southeastern Freight A Duie Pyle Dayton Freight Oak Harbor D&D Services Inc. Custom Assembly IDS Gildemeister Trucking Midwest Motorcycle Setup Inc. Lynden Transport Mayflower/Boulevard KGM Assemblers Inc. Brown Cartage Cartage Plus K&R J. B. Hunt Transport Total Transportation Services U.S. Xpress AWC Amports WWL California Cartage Company Brookvale International Allen Distribution Chicagoland Cities Quad Shippers Warehouse Shippers Warehouse of Georgia United Warehouses A.C.T. Air Contact Transport Blackhorse Carriers, Inc. Action Expediting FedEx Trade Networks ALG Carmichael International Service Major Insurers and Insurance Brokers CAN/Continental Ins. Co. K&K Insurance (Great American Assurance Co./Nationwide Life Insurance Co.) Federal Insurance Company/Chubb Specialty Houston Casualty Company Starr Marine Agency of California/national Liability & Fire Insurance Company Sompo Japan Tokio Marine
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Chubb/Federal Insurance Major Third Party Administrators Automatic Data Processing, Inc. Aetna Kaiser Permanente EyeMed Chard Snyder Lincoln Financial Hotta Liesenberg Saito & Co. Trans Pacific Parties to Litigation Defendants and Defendant Attorneys Watts Powersports, Inc. Tommy Watts Carolyn Watts Tyler Watts T&T Testers, Inc. Cotton Bledsoe Tighe & Dawson, PC Principal Life Insurance Company Principal Financial Group, Inc. Wilson Elser Moskowitz Edelman & Dicker LLP Suzuki Motor Corporation Boshart Engineering, Inc. Desimone, Inc. Desimone Motor Vehicles, Inc. National Auto Finance Co. Bill Seidel's Suzuki, Inc. Stephen Pontiac-Cadillas, Inc. Queens Suzuki Kipo Motors Rick Hill Nissan, Inc. Johnny's Suzuki of Moncks Corner John C. Dangerfield Suzuki 112 Green Country Honda Suzuki DRT, LLC dba Edge Performance Sports Law Office of Wendy M. Kent Brian Sullivan Kent H. Andersson Kent H. Andersson DBA Andersson Marine Andersson Marine, Inc. BOAT/U.S., Inc. DBA Boat Owners Association of the United States BOAT/U.S. Foundation The Continental Insurance Company Maurer Marine, Inc.
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Mitchell Bernardo dba Sunset Inflatables Wiborg Marine, Inc., d/b/a Bob Hewes Boats Larrys Automotive, Inc. d/b/a Power Cats of Miami Ed Eskew Parties to Litigation Plaintiffs and Plaintiff Attorneys JF Enterprises, LLC d/b/a Jeremy Franklin's Suzuki of Kansas City Olathe Showcase Cars, Inc. d/b/a Jeremy Franklin Suzuki of Olathe Strong Garner Bauer, P.C. White, Allinder, Graham, Buckley & Carr, LLC D2K, Inc., d/b/a Suzuki of Huntsville Shoals Suzuki, Inc. Varsity Suzuki, Inc. Gary Linam Baddley & Mauro, LLC Bainbridge, Mims Department of Justice Jay Automotive Group, Inc., d/b/a Jay Suzuki Butler, Wooten & Fryhofer, LLP James Brockman, Jr. Hampton of Greer, LLC Suzuki of Greer, LLC The Clardy Law Firm, PA Law Office of Matthew Bobo, PLLC John Cornelius Dangerfield Johnny's Enterprises, Inc. Johnny's Suzuki of Easley, LLC Johnny's Suzuki of Myrtle Beach, LLC Lofton & Lofton, PC Stephen Michaels, LLC Fabrizio & Brook, P.C. Route 9 Auto World, Inc. d/b/a Autoworld Suzuki Towne, Ryan & Partners, PC Lloyd A. Wise Corp., dba Suzuki of San Leandro Musick, Peeler & Garrett LLP I-27 Powersports, Inc., d/b/a I-27 Marine & Powersports John W. Beakley The Law Office of Jeremy C. Anderson, PC Champion Motor Sports Rober A. Lee, Jr. The Margolis Law Firm, LLC The Margolis Law Firm, LLC The Regents of the University of California Stephenson, Acquisto & Colman Beacon Navigation GMBH Young Conaway Stargatt & Taylor, LLP Freitas Tseng & Kaufman LLP
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Meredith Corporation Belin McCormick, PC Felicia and Ric Dorman The Libland Law Firm Dorene Bonilla Eric Bonilla Kimmel & Silverman Jeremy R. Brawdy Dale W. Brawdy Kimmel & Silverman Bobbi Broughton Krohn & Moss, Ltd. Joseph P. Burger Jr. Lucy M. Burger Kimmel & Silverman Anthony Cockrell June Cockrell Law Offices of William R. McGee Jeffrey and Marlys Cook Gadtke & Brennan, PA James E. Cooper Kimmel & Silverman Reginald L. Gilford Sr. Daun Holland Kimmel & Silverman John Hillebrecht Amanda Stephens Law Offices of William R. McGee Andre D. Johnson Kimmel & Silverman Brenda Johnson Kalikhman & Rayz, LLC Jeffrey Kantner Jean P. Kantner David J. Gorberg & Associates, PC Nancy M. Kennon California Lemon Law Groupk Inc. Tiffany L. Landi Kimmel & Silverman Raimundo Lopez-Lima Levi Nitiah Beatriz Ponce Feiler & Leach, PL Mariusz Makuch Consumer Law Group, LLC Joy Michalitsis Lisa G. Odle
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Kyle Ostopick David J. Gorberg & Associates, PC Heather Pesotini Kimmel & Silverman Dominique Pierce Harry Rivers Levi Rivers Kimmel & Silverman Sara Margaret Sasala Mark C. Sasala Kimmel & Silverman James M. Siracuse Mary Beth A. Siracuse Kimmel & Silverman Dawn M. Smith Kimmel & Silverman Bertha Velazquez Krohn & Moss, Ltd. Kevin Vullo Whitley Wright Strawn and Edwards PLLC Julie Yates Kimmel & Silverman Tammy Young Gadtke & Brennan, PA Anthony Ray Benton Jr. Camisha Conover Fred Davis Scottie Doucet Brame & McCain Glenn Ebow Law Offices of Todd M. Friedman, PC Ricardo Rivera Kimmel & Silverman State Farm Mutual Automobile Insurance Company, as Subrogee of Danial Stenger James M. O'Dea Poliana Wijaya Kimmel & Silverman Samantha L. Bridgewater Law Offices of Larry R. Hoddick Kurt Castellano David J. Gorberg & Associates, PC Frederick Franks Peters, Murdaugh, Parker, Eltzroth & Detrick, PA Angelo Fonsone PTR Inc., d/b/a Victory Lane Power Sports
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Carol Anderson Law Offices of William R. McGee Linda A. Bazzone James M. Bazzone Kimmel & Silverman Rob Crowell Kimmel & Silverman Ronald W. Emerick Kimmel & Silverman Julia K. Genter Kimmel & Silverman Thomas Pfeifer Jr. Kimmel & Silverman Jon Shelton Kimmel & Silverman Tony and Susan Stock Krohn & Moss, Ltd. Southern Cycle Center, Inc. dba New Orleans Power Sports Fitzgerald Oldsmobile-Cadillac, Inc. d/b/a/ Fitzgerald Suzuki Charapp & Weiss, LLP Richard Barnhart Kimmel & Silverman Audrie Craig Kimmel & Silverman Aubry Mortimer Kimmel & Silverman Mitchell M. Roney Kimmel & Silverman Brandy Ellenberger-Sarvey Kimmel & Silverman Guy Knoch Richard A. Hoffman David M. Seida Russell L. Baldwin Jason Willis JNW LLC Donald Craig Automotive Group, LLC North American Warhorse, Inc. Rinaldi & Poveromo, PC Attorney General of Missouri Attorney General of the State of Kansas Consumer Protection Division" Edward Craft Kimmel & Silverman Nathan Washburn Krohn & Moss, Ltd.
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Miller Auto Sales, Inc. d/b/a Miller Honda Volkswagen Isuzu Suzuki Charapp & Weiss, LLP Brad A. Grist Pisarra & Grist Michele Amburn Kimmel & Silverman Ute Dukes Kimmel & Silverman Dana Hinson Kimmel & Silverman Madeline Mendez Kimmel & Silverman Tamika Jones Brenda Plummer Kimmel & Silverman Eneida Sanchez Kimmel & Silverman Conrad J. Kopic National Charter, Inc. Gary W. Pollack, PA Mr. Yamaha, Inc. d/b/a Mr. Motorcycle Riggs, Aleshire & Ray, PC John Flanigan David J. Gorberg & Associates, PC Bruce Fleming Mandy Mease Kimmel & Silverman V&E Inc. dba Redline Cycles Angelique Richards Kimmel & Silverman Maveryck Langford Stevenson Jim Ward Krohn & Moss, Ltd. Primo Moreno Krohn & Moss, Ltd. William Smith Smith's Sports Cycles Galese & Ingram, PC Brenda Beck Butler & Associates, PA Linda G. Bush Frank Pentaude Enniscoleman, LLP Fermina Urroz Mario Urroz Kimmel & Silverman
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
Michael Hedrick Kimmel & Silverman Angeline Kamon Kimmel & Silverman Yvonne Obukowho Kimmel & Silverman Carol Paprocki Krohn & Moss, Ltd. Adrienne Stead David J. Gorberg & Associates, PC Lisa Wilhelm Kimmel & Silverman George Sprague Steven M. Lundbohm Judges and Court Personnel in Santa Ana C.D. of Cal. Bankruptcy Judges (Santa Ana Only) Theodor C. Albert Catherine E. Bauer Scott C. Clarkson Erithe A. Smith Mark S. Wallace UST Region 16 Peter C. Anderson Frank Cadigan Abram S Feuerstein Jennifer Braun Jill Sturtevant
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
SCHEDULE 2 Relationships in Matters Related to These Proceedings None. Parties-in-Interest with Current Relationship in Unrelated Matters FTI is an international firm with many different divisions and service lines that provide services in connection with numerous cases, proceedings, and transactions around the world. FTI has a relationship with the entities listed below in matters unrelated to these Chapter 11 Cases. These unrelated matters involve attorneys, financial advisors, and creditors, some of which may be claimants or parties with actual or potential interests in these cases, or may represent such parties, including: ADVANSTAR COMMUNICATIONS INC ADVERTISING CHECKING BUREAU, INC Aetna AIMIA AKAMAI TECHNOLOGIES INC AMERICAN SUZUKI FINANCIAL SERVICES American Suzuki Motor Corporation AT&T Automatic Data Processing, Inc. AVAYA INC AVIS BUDGET GROUP, INC. BAKER & HOSTETLER LLP BAKER BOTTS LLP Bank of America BNSF BRACEWELL & GIULIANI LLP BUCHANAN, INGERSOLL & ROONEY, BURLINGTON NORTHERN RR CO BUTLER, WOOTEN & FRYHOFER, LLP IN TRUST Chubb/Federal Insurance CONSUMERS ENERGY Department of Justice DINSMORE & SHOHL LLP DTE ENERGY FEDERAL EXPRESS CORP Federal Insurance Company/Chubb Specialty FRANCHISE TAX BOARD Freitas Tseng & Kaufman LLP GARMIN GENERAL MOTORS LLC HISCOCK & BARCLAY LLP IDS INTERNAL REVENUE SERVICE
Case 8:12-bk-22808-CB
Desc
JP MORGAN CHASE K&R Kirkland & Ellis KPMG, LLP LANDSBERG MCCAFFERTY HYI SLS, INC MCGUIREWOODS Mizuho NELSON MULLINS RILEY & SCARBOR NELSON MULLINS RILEY & SCARBOROUGH, LLP ORACLE AMERICA, INC. PENNSYLVANIA-AMERICAN WATER CO POLSINELLI SHUGHART PC PPL ELECTRIC UTILITIES PRICEWATERHOUSECOOPERS Principal Life Insurance Company SOUTHERN CALIFORNIA EDISON CO. STRASBURGER & PRICE, LLP SUN LIFE ASSURANCE COMPANY OF CANADA SUN TRUST BANK SUTHERLAND, ASBILL & BRENNAN, THE GAS COMPANY U.S. BANK NATIONAL ASSOCIATION Union Bank Union Bank of California UNITED PARCEL SERVICE US BANK WACHOVIA MANAGEMENT CORPORATION WELLS FARGO Wilson Elser Moskowitz Edelman & Dicker LLP WINSTON & STRAWN LLP Young Conaway Stargatt & Taylor, LLP
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
EXHIBIT B (Proposed Order)
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
Richard M. Pachulski (CA Bar No. 90073) James I. Stang (CA Bar No. 94435) Dean A. Ziehl (CA Bar No. 84529) Debra I. Grassgreen (CA Bar No. 169978) Linda F. Cantor (CA Bar No. 153762) PACHULSKI STANG ZIEHL & JONES LLP 10100 Santa Monica Blvd., Suite 1300 Los Angeles, CA 90067-4114 Telephone: 310/277-6910 Facsimile: 310/201-0760 E-mail: rpachulski@pszjlaw.com jstang@pszjlaw.com dziehl@pszjlaw.com dgrassgreen@pszjlaw.com lcantor@pszjlaw.com Proposed Attorneys for Debtor and Debtor in Possession UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re: American Suzuki Motor Corporation,1 Debtor. INTERIM ORDER GRANTING DEBTORS MOTION FOR ENTRY OF AN ORDER PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE APPROVING THE ENGAGEMENT CONTRACT OF (I) M. FREDDIE REISS AS CHIEF RESTRUCTURING OFFICER OF THE DEBTOR AND (II) FTI CONSULTING, INC. TO ASSIST THE CRO, NUNC PRO TUNC TO THE PETITION DATE Upon the Motion (the Motion)2 of the above-captioned debtor and debtor in possession (the Debtor) for entry of an order approving the letter agreement (the Engagement Contract) dated November 5, 2012, by and between the Debtor and FTI Consulting, Inc. (FTI),; and upon consideration of the Reiss Declaration; and due and proper notice of the Motion having been given
2 1
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No.: 12Chapter 11
( )
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion.
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
under the circumstances; and the Court being satisfied based on the representations made in the Motion and the Reiss Declaration that neither FTI Consulting, Inc., nor Mr. Reiss represents an interest adverse to the Debtors estate with respect to the matters upon which they are to be engaged, and that their employment is necessary and would be in the best interests of the Debtors estate, and after due deliberation and sufficient cause appearing therefor, IT IS HEREBY ORDERED that: 1. 2. The Motion is GRANTED as modified herein on an interim basis. The Debtor is authorized, nunc pro tunc to the Petition Date, to (i) employ and retain
FTI Consulting, Inc. (FTI) on the terms set forth in the Engagement Contract and the Motion, subject to the following terms, which apply notwithstanding anything in the Motion or any exhibit(s) related thereto to the contrary; and (ii) designate M. Freddie Reiss as Chief Restructuring Officer of the Debtor. 3. All compensation and reimbursement due to, and other rights of FTI under the
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Engagement Contract shall be treated and allowed (subject to the compensation review procedures identified in this Order) as administrative expenses in accordance with section 503 of the Bankruptcy Code and shall be paid in accordance with the Engagement Contract. 4. FTI shall not act in any other capacity (for example, and without limitation, as a
financial advisory, claims agent/claims administrator or investor/acquirer) in connection with the above-captioned case. 5. In the event the Debtor seeks to have FTI personnel assume additional or different
executive positions that the positions disclosed in the Motion, to modify materially the functions of the persons engaged, or to materially change the terms of the engagement by either (i) modifying the functions of personnel, (ii) adding new personnel, or (iii) altering or expanding the scope of the engagement, a motion to modify the retention shall be filed. 6. No principal, employee or independent contractor of FTI shall serve as a director of
the above-captioned Debtor during the pendency of this case.
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
7.
To the extent the Debtor exercises its right to grant FTI a supplemental performance
fee, FTI will file an application with the Court seeking approval of such fee, and such fee shall not be paid to FTI unless and until an order approving such application is entered by the Court. 8. FTI shall file with the Court, with copies to the United States Trustee and all official
committees, a report of staffing on the engagement for the previous month. Such report shall include the names and functions filled of the individuals assigned. All staffing shall be subject to review by the Court in the event an objection is filed. 9. FTI shall file with the Court (and serve copies on the United States Trustee and any
official committees appointed in this case contemporaneously with such filing) reports of compensation earned and expenses incurred on at least a quarterly basis. Such reports shall contain summary charts which describe services provided, identify the compensation earned by each executive officer and staff employee, and itemize the expenses incurred. Time records for all FTI Additional Personnel other than the CRO shall (i) be appended to the reports, (ii) contain detailed time entries describing the task(s) performed, and (iii) be organized by project category. When FTI personnel are providing services at an hourly rate, such personnel shall record their time entries in increments no greater than one-half hour (.5). All compensation shall be subject to review by the Court in the event an objection is filed. The first quarterly report will be submitted forty-five (45) days from the end of the first calendar quarter after the Petition Date and will cover the period to and including the last day of the first quarter after the Petition Date. This procedure will continue at three month intervals thereafter. 10. FTI shall be permitted to hold the Deposit through the duration of the chapter 11 case;
11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
provided however that FTI shall apply the Deposit to any outstanding amounts owed by the Debtor as of the effective date of a confirmed plan of reorganization and shall return all amounts remaining in the Deposit after such application to the Debtor. 11. The Debtor is permitted to indemnify those persons serving as corporate officers
pursuant to the Motion on the same terms as provided to the Debtors other officers and directors under the corporate bylaws and applicable state law. There shall be no other indemnification of FTI or its affiliates.
DOCS_SF:81696.6 12832/001
Case 8:12-bk-22808-CB
Desc
1 2 3 4 5 6 7 8 9 10
12.
For a period of three (3) years after the conclusion of the engagement, neither FTI nor
any of its affiliates shall make any investments in the Debtor or the Reorganized Debtor. 13. FTI shall disclose any and all facts that may have a bearing on whether the firm, its
affiliates, and/or any individuals working on the engagement hold or represent any interest adverse to the Debtor, its creditors, or other parties in interest. The obligation to disclose identified in this subparagraph is a continuing obligation. 14. 15. The terms of this Order shall be immediately effective and enforceable upon its entry. Within 5 business days of entry of this Order, the Debtor shall serve notice of the
Motion to be heard on a final basis. 16. The Court shall retain jurisdiction to hear and determine all matters arising from or
11 12
related to the implementation of this Order. ###
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DOCS_SF:81696.6 12832/001

10000000610

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

10000000610

Uploaded by

Copyright:

Available Formats

Case 8:12-bk-22808-CB

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 1 of 78

Case No.: 12Chapter 11

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 2 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 3 of 78

the attached Memorandum of Points and Authorities; and

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 4 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 5 of 78

I. II. III. IV.

V. VI. VII. VIII. IX. X.

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 8 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 9 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 10 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 11 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 12 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 13 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 14 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 15 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 16 of 78

$780 - $895 $560 - $745 $280 - $530 $115 - $230

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 17 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 19 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 20 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 21 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 22 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 23 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 24 of 78

By: Takashi Iwatsuki Title: Chairman of the Board

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 25 of 78

EXHIBIT A (Reiss Declaration)

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 26 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 27 of 78

I am a Senior Managing Director of FTI Consulting, Inc. (FTI) and am duly

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 28 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 29 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 30 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 31 of 78

M. Freddie Reiss Title: Senior Managing Director

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 32 of 78

EXHIBIT 1 (Engagement Contract)

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 33 of 78

CONFIDENTIAL November 2, 2012

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 34 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 35 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 36 of 78

Per Hour (USD) $780- 895 $ 560-745 $ 280-530 $ 115-230

Other Compensation and Payment Procedures

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 37 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 38 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 39 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 40 of 78

By: _ Name: M. Freddie Reiss Title: Senior Managing Director

ACCEPTED AND AGREED this 2nd day of November 2012.

On behalf of American Suzuki Motor Corporation, Inc.

By: Name: Takashi Iwatsuki Title: Chairman

Date: November 5, 2012

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 41 of 78

EXHIBIT A FTI CONSULTING, INC. STANDARD TERMS AND CONDITIONS

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 42 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 43 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 44 of 78

Doc 14 Filed 11/05/12 Entered 11/05/12 18:09:12 Main Document Page 45 of 78

On behalf of [American Suzuki Motor Corporation, Inc.]

By: Name: Takashi Iwatsuki Title: Chairman